SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

-------------------------------------------------------------------------------- x

LISA STEGLICH, individually and as parent and natural guardian:

of ALEXANDER HERLIHY, infant, RIC CHERWIN,

individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually : and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian of HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL,: infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant,

Petitioners,

-against-

THE BOARD OF EDUCA nON OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of the City School District of the City of New York,

Respondents.

-------------------------------------------------------------------------------- x

PETITIONERS' MEMORANDUM OF LAW IN SUPPORT OF ARTICLE 78 PETITION

Index No. 104300111

PHILLIPS NIZER LLP

666 Fifth Avenue

New York, NY 10103 (212) 977-9700 Attorney for Petitioners

Of Counsel:

Jon Schuyler Brooks Marc Andrew Landis Meagan A. Zapotocky

11395415

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

Preliminary Statement. 2

Statement ofFacts 3

ARGUMENT 3

I. STANDARD OF REVIEW 3

II RESPONDENTS WRONGLY DETERMINED THAT THE BRANDEIS CAMPUS WAS

UNDER-UTILIZED 5

A. The Brandeis Campus is Not Under-Utilized 6

B. The DOE Failed to Consider Community Feedback Concerning its

Designation of Brandeis Campus as an Under-Utilized 7

C. The Site Visit Survey 7

III RESPONDENTS' Educational IMPACT STATEMENT Is INACCURATE, INCOMPLETE AND

INSUFFICIENT 8

A. Respondents Were Required to Issue an Education Impact Statement Setting

Forth Detailed Subjects 8

B. Respondents Failed to Create an EIS that Included Current Pupil Enrollment Figures, Adequately Assessed the Impacts of the SACS Proposal on the Affected

Students and Omitted Required Information 9

IV. RESPONDENTS' BUILDING UTILlZA TION PLAN DOES NOT RESULT IN COMPARABLE

AND EQUITABLE SPACE ALLOCATIONS 14

V. RESPONDENTS DID NOT COMPLY WITH ApPLICABLE NOTICE REQUIREMENTS 18

VI. THE DOE FAILED TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT 19

CONCLUSION 21

1139541.5

TABLE OF AUTHORITIES

CASES

Appeal of Ivana Espinet, _ Ed. Dept Rep. _, Decision No. 16212 (Mar. 31,2011) 18

Appeal of Jessica Santos, 50 Ed. Dept Rep. _, Decision No. 16,116 (Aug. 2, 2010) .4

Bd ofEduc. v. Comm'r ofEduc., 91 N.Y.2d 133, 677 N.Y.S.2d 671 (1997) 3

Caso v. New York State Public High School Athletic Ass'n, Inc., 78 A.D.2d 41, 434

N.Y.S.2d 60 (4th Dep't 1980) 3

Chase v. Bd. of Educ., 188 AD.2d 192 (1993) 20

Chinese Staff & Workers Ass'n v. New York, 68 N.Y.2d 359, 509

N.Y.S.2d 499 (1986) 10, 11, 13, 19,20

E.FS. Ventures Corp. v. Foster, 71 N.Y.2d 359,526 N.Y.S.2d 56 (1988) 11, 20

Mulgrew v. Bd of Educ., 28 Misc. 3d 204

(Sup. Ct. New York County 2010) 4, 5, 9, 10, 13, 17, 18

Mulgrew v. Bd. of Educ., 75 AD.3d 412 (1st Dep't 2010) 4, 10, 13, 17, 19

Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 AD.3d 1312

(4th Dep't 2005) 4, 11

Williamsburg Around the Bridge Block Ass'n v. Giuliani, 223 A.D.2d 64 (1st Dep't 1996) ......... .4

Wrightv. Town of LaGrange, 181 Misc. 2d 625, 694 N.Y.S.2d 862

(Sup. Ct. New York County 1999) 3

STATUTES AND REGULATIONS

CPLR § 7803(3) 3

Chancellor's Reg. A-190 passim

Chancellor's Reg. A-655 7

Educ. L. § 2853 5, 14, 15, 17, 18

Educ. L. § 2590-g 18

Educ. L. § 2590-h

......................................................................................... 8, 9,11,13,17,19

11

1139541.TOA

Petitioners Lisa Steglich, Ric Cherwin, Carol Barker, Gina DeMetrius, Kimberly Jamot, Nydia Jordan, Kavery Kaul, Ruben and Geraldine Lopez, Madeline Olmeda, Lazara Quinones, and Marilynn Sarjeant, and infant Petitioners Alexander Herlihy, Marley Cherwin, Omari

Brown, Sebastian DeMetrius, Margaret Thomas, Harry D. Jordan, Ashok Kaul, Shane Lopez, Cristina Jullia Cruz, Doris Alcantara and Aliya Clunie, by their respective parents and natural guardians, all by their attorney Phillips Nizer LLP, submit this memorandum of law in support of their petition pursuant to Article 78 of the Civil Practice Law and Rules.

PRELIMINARY STATEMENT

In the wee-small hours of February 2, 2011, seven people sitting in a room in Brooklyn raised their hands, and by that action approved a proposal to insinuate a new kindergarten and elementary charter school into an existing public school building that houses only high schools. That vote by the Board of Education of the City School District of the City of New York (now referred to as the Panel for Educational Policy ("PEP"») approved a proposal by the Chancellor of the City School District of the City of New York (the "Chancellor") and the New York City Department of Education ("DOE") to co-locate the Success Academy Charter School ("SACS") into the so-called Brandeis Educational Campus ("Brandeis Campus"), a single building recently renovated and retrofitted to accommodate five separate public high schools.

This proceeding challenges that vote. The New York State Education Law and the Regulations of the Chancellor ("Chancellor's Regulations") recently were amended to impose a more rigorous process on the Chancellor and the DOE whenever they propose, and upon PEP whenever it considers, co-locating a charter school in an existing public school building. As set forth in detail in the Verified Petition and summarized below, the Chancellor, DOE, and PEP itself failed on multiple occasions to comply with their respective obligations under that process,

2

1139541.5

and also wholly-ignored their responsibilities under the State and City environmental quality review acts.

As a matter of law, anyone of those failures renders the PEP vote "in violation of lawful procedure" and/or "arbitrary and capricious." It must be declared null and void, and then vacated. Furthermore, given the security and other substantive issues inherent in placing five year olds and later-age teens in one common school building, the proposed co-location of SACS in the Brandeis Campus should be enjoined permanently.

ST ATEMENT OF FACTS

Petitioners respectfully refer the Court to the Verified Petition, dated April 8,2011, for a complete statement of the facts. For the convenience of the Court, key facts are incorporated into the arguments below.

ARGUMENT I.

ST ANDARD OF REVIEW

CPLR § 7803(3) permits judicial review of an administrative action to determine whether the action was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. See also Bd. of Educ. v. Comm 'r of Educ., 91 N.Y.2d 133, 139,677 N.Y.S.2d 671,673 (1997).

"It is well established that an arbitrary action as contemplated by CPLR §7803 is action without sound basis in reason and is generally taken without regard to the facts." Wright v. Town of Lailrange, 181 Misc. 2d 625,632,694 N.Y.S.2d 862,867 (Sup. Ct. New York County 1999)(citing Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974)); Caso v. New York State Public High School Athletic Ass 'n, Inc., 78 A.D.2d 41, 434 N.Y.S.2d 60 (4th Dep't 1980).

3

1139541.5

Where, as here, the law sets out specific actions, requirements and procedures to be

followed by government, strict compliance is required. Mulgrew v. Bd. of Educ., 28 Misc. 3d

204,212-13 (Sup. Ct. New York County 2010), aff'd Mulgrew v. Bd of Educ., 75 A.D.3d 412

(1st Dep't 2010); I see also Williamsburg Around the Bridge Block Ass 'n v. Giuliani, 223 A.D.2d

64, 73-74 (1 st Dep't 1996) (respondents' action null and void for failure to comply strictly with

public comment mandates of SEQRA by allowing limited public participation and scrutinyjj'

"Where statutory language is clear regarding procedural steps which must be taken by an

agency prior to administrative action, and those steps have not been taken, the administrative

action must fail." Mulgrew, 28 Misc. 3d at 213 (citing Siegal v. New York State Div. of Hous. &

Community Renewal, 143 A.D.2d 430 (2d Dep't 1988». Failure to comply with those

procedural steps cannot be characterized as harmless error. Pyramid Co. of Watertown v.

Planning Bd of Town of Watertown, 24 A.D.3d 1312, 1313 (4th Dep't 2005) ("Because SEQRA

requires strict adherence to its procedural requirements, the Board's failure to comply with those

procedural requirements cannot be deemed harmless"); accord, Appeal of Jessica Santos, 50 Ed.

Dept Rep. _, Decision No. 16,116 (Aug. 2,2010) (DOE's failure to comply with Education

Law § 2590-h [2-a] by issuing an educational impact statement ("EIS") that did not fully assess

the impact of the change in school utilization on the affected students cannot be characterized as

harmless error).

I The lAS court held the proper standard of review was strict compliance. On appeal, the Appellate Division found the failures of the Chancellor and DOE so obvious that, "[wJhether the applicable standard of review is strict compliance or substantial compliance, the court properly determined that respondents' EIS for each school failed to comply with the substantive requirements of Education Law § 2590·h (2-a)(b)." Mulgrew, 75 A.D.3d 412 (1st Dep't 2010).

2 "The language [of the relevant provisions of the Education Law] is similar to that used by the Legislature in the State Environmental Quality Review Act (SEQRA), and it convinces the court that, respondents' arguments to the contrary notwithstanding, the body of law governing SEQRA is instructive in interpreting the relevant provisions of the Education Law." Mulgrew, 28 Misc. 3d at 210.

4

1139541.5

Respondents had a statutory and regulatory duty to conduct a substantive analysis of the

potential impacts the proposed co-location would have on the current students and the

community, detail those findings in an EIS and Building Utilization Plan ("BUP"), give proper

notice of and hold a joint public hearing ("Joint Hearing") concerning the proposal to allow all

interested parties an opportunity to present comments and concerns, and to give proper notice of

the PEP meeting. See Education Law §§ 2S90-h [2-a], 2583 [3](a-3)(1)-(2); accord,

Chancellor's Reg. A-190. Respondents failed to comply with the applicable statutes and

regulations. The PEP vote should be declared null and void. See Mulgrew, 28 Misc. 3d at 211

(annulling PEP vote to close 19 public schools when the respondents failed to strictly comply

with Education Law Article 52-A).

II

RESPONDENTS WRONGLY DETERMINED THAT THE BRANDEIS CAMPUS WAS UNDER-UTILIZED

The DOE has the authority to co-locate a charter school into an existing public school if

the DOE has determined that the public school is underutilized. On or about October 6, 2010,

the DOE issued an "Under-utilized Space Memorandum" (the "2010 Utilization Memo") that,

ostensibly, lists the Schools the DOE "has preliminarily determined ... are 'under-utilized.'"

Verified Petition, Ex. 1.

The "basic guidelines used to determine which schools are included" in the 2010

Utilization Memo are as follows:

Criteria for initial inclusion:

• Minimum of300 seats currently available - per the 2009-2010 Blue Book

OR

• Minimum of 300 seats projected to be available over the next 2-3 years (e.g., a current school in the building is phasing out)

5

1139541.5

Schools were removed from the list if:

• The projected number of available seats over the next 2-3 years is or will be less than 300 (e.g., one or more schools are in the midst of phasing into the building or part of a planned expansion).

Verified Petition, Ex. 1, p. 2.

The "Important Notes" of the 2010 Utilization Memo provide:

• No space changes will be proposed without further consultation between [DOE's Division of] Portfolio [Planning] and you and your school community.

• Any proposed space change that involves the co-location of another school organization will require a site visit by the Division of School Facilities for an on-site review of the building.

• Any proposed space change that requires approval by the Panel for Education [sic] Policy will be preceded by a formal public notice and a public hearing held at the school, where community members can provide feedback on the proposal prior to the vote.

Ibid (underscoring in original; italicized bold emphases added).

A. The Brandeis Campus is Not Under-Utilized

The DOE calculated there were only 263 available seats -less than the magic 300 - in

the entire Brandeis Campus. Id. at p.J. As DOE itself acknowledged in the EIS, the four high

schools located in the Brandeis Campus - other than Brandeis High School which is being

phased out - are being phased in and expanding. Id. at p.l.

In the Brandeis EIS, DOE claims the enrollment in the remaining grades at Brandeis

High is 609. Verified Petition, Ex. 3 at p.3. Assuming half those students are phased out at the

end of the 2010-2011 school year, then the number of empty seats at the Brandeis Campus for

the 2011-2012 school year will rise from the 263 indicated in the 2010 Utilization Memo to 568.

Green Careers, Global Learning and Frank McCourt, however, each will phase in an

additional 100-125 students for the 2011-2012 school year. Id. Those additions will bring 300

to 375 new students to the Brandeis Campus for the 2011-2012 school year.

6

1139541.5

According to DOE's own criteria, therefore, the Brandeis Campus should have been

removed from the 2010 Utilization Memo. Verified Petition, Ex. 1 at p.2.

B. The DOE Failed to Consider Community Feedback Concerning its Designation of Brandeis Campus as an Under-Utilized

In addition to the improper designation that the Brandeis Campus was an under-utilized

school, the DOE ignored the SL T's challenge that the Brandeis Campus was underutilized.

According the 2010 Utilization Memo, the "DOE has asked principals to review this

determination with their School Leadership Teams ("SLT") and provide feedback to inform

future decisions about potential changes to your space and building." Id. at p.l. To the extent

the five principals ever undertook such a review, the SLTs rejected the notion that the Brandeis

Campus was under-utilized. DOE rejected the SL T feedback.

Moreover, the DOE's Division of Portfolio Planning Failed to Consult with the

community concerning its determination that the Brandeis Campus was under-utilized.

The 2010 Utilization Memo guarantees that "[ n]o space changes will be proposed without

further consultation between Portfolio and you and your school community." Id. at p.2

(emphasis added). "School community" includes not only a principal, but also the SLT, the

CEC, the community superintendent, the Citywide Council on High Schools, and others. See

generally, Chancellor's Reg. A-190 §§ ILA.3-4 and A-655 § X.B.

In breach of that guarantee, no later than December 17,2010, the DOE proposed not only

a space change at the Brandeis Campus, but also the co-location of SACS in the Brandeis

Campus. See Verified Petition, Exs. 3-5. As a result, DOE failed to comply with its own

procedure regarding determinations of under-utilized public school buildings.

C. The Site Visit Survey

DOE also failed to comply with its own procedure regarding the on-site review of the

building. The 2010 Utilization Memo guaranteed also that "[a]ny proposed space change that 7

1139541.5

involves the co-location of another school organization will require a site visit by the Division of

School Facilities for an on-site review of the building." Verified Petition, Ex. 1 at p.2. The only

"on-site review of the building" was made by the DOE Office of Space Planning. Verified

Petition, Ex. 2. According to publicly available information, the Office of School Planning is

not part of the Division of School Facilities. See DSF Organization Chart, available at

http://www .opt -osfns.org/ dsfi'reference/dsf _ org. pdf

III

RESPONDENTS' EDUCATIONAL IMPACT STATEMENT Is INACCURATE, INCOMPLETE AND INSUFFICIENT

A. Respondents Were Required to Issue an Education Impact Statement Setting Forth Detailed Subjects

New York Education Law requires the Chancellor to prepare an educational impact

statement regarding any proposed significant change in school utilization, including the co-

location of schools. Education Law § 2590-h (2-a) (a). Education Law § 2590-h (2-a) (b) lists

seven specific categories of information that must be analyzed in an EIS:

(i) the current and projected pupil enrollment ofthe affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial cots and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;

(ii) the impacts of the proposed school closing or significant change in school utilization to any affected students;

(iii) an outline of any proposed or potential use of the school building for other educational programs or administrative services;

(iv) the effect of such school closing or significant change in school utilization on personnel needs the costs of instruction, administration, transportation, or other support services;

8

1139541.5

(v) the type, age and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such buildings' special features;

(vi) the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and

(vii) information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status.

The Chancellor's Regulation A-190 (II)(A)(1) requires the EIS to include nine subjects,

which are substantially similar to those articulated in Education Law § 2S90-h (2-a) (b). The

Regulation of the Chancellor A-190 was amended on October 7, 2010 to implement amendments

in the Education Law which required a public review and comment process on all proposals by

the Chancellor to close a school or make a significant change in school utilization and the

amendment to the Charter School Act requiring additional procedures in connection with the

location or co-location of one or more charter schools in an existing public school. See

Chancellor's Regulation A-190, Abstract.

B. Respondents Failed to Create an EIS that Included Current Pupil Enrollment Figures, Adequately Assessed the Impacts of the SACS Proposal on the Affected Students and Omitted Required Information

Although the Chancellor prepared an EIS for the SACS co-location proposal, as

discussed herein, the information contained therein falls woefully short of the obligations

imposed under the Education Law.

Because the amendments to New York Education Law requiring an EIS are just over a

year old, the case law interpreting the statute is limited. See Mulgrew, 28 Misc. 3d at 210. In

Mulgrew, the petitioners challenged the PEP's votes to close and co-locate 19 schools. The

petitioners alleged that the respondents failed to comply with the requirements of § 2S90-h of the

9

1139541.5

Education Law when the E1Ss did not contain information required by the statute, failed to provide the detailed analysis an impact statement mandates, and failed to comply with the notice requirements. Because the Education Law was newly amended to require an E1S, the court looked to the State Environmental Quality Review Act (SEQRA), for guidance in interpreting the statute, a statute which similarly requires an agency planning to undertake an action which may have a significant impact on the environment to prepare a detailed environmental impact statement covering specific areas designated by statute. Id. at 210. The court ultimately found the respondents failed to provide the detailed analysis an impact statement mandates and failed to provide any meaningful information regarding the impacts on the students or the ability of the schools in the affected community to accommodate displaced students. Id. at 211. Because the respondents failed to comply with their obligations under the statute, the appropriate remedy was to find the agency action null and void. Mulgrew, 28 Misc. 3d at 211. The First Department affirmed the lower court, finding that the respondents' actions constituted an abuse of discretion by failing to provide adequate information in the E1S. Mulgrew, 75 A.D. 3d at 414. The court also affirmed the lower court's holding that the respondents failed to comply with the notice requirements mandated by the statute. Id. at 415. As such, the PEP votes were properly annulled.

Courts have set a clear standard in SEQRA cases for evaluating whether an educational impact statement is adequate. When a court must evaluate "whether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion," it is the duty of the court "to assure that the agency itself has satisfied SEQRA, procedurally and substantively." Chinese Staff & Workers Ass 'n v. New York, 68 N.Y.2d 359, 363,509 N.Y.S.2d 499,501 (1986). The court must also determine whether the agency took a "hard look" at the relevant issues and made a "reasoned elaboration" as the basis

10

1139541.5

for its determination, Jd.; see also Pyramid Co. of Watertown v. Planning Bd. of Town of

Watertown, 24 A.D.3d 1315 (4th Dep't 2005). When an agency fails to comply with the

statutory mandates of SEQRA, its determination is arbitrary and capricious. Chinese Staff &

Workers Ass 'n, 68 N.Y.2d. at 368. An agency's failure to include a detailed and reasoned

analysis is grounds for annulment of the proposed action. See id. at 369 ("Respondents have

failed to comply with the requirements of SEQRA and CEQR and the appropriate remedy is to

... dec1are [] the special permit null and void"); E.FS. Ventures Corp. v. Foster, 71 N.Y.2d 359,

371,526 N.Y.S.2d 56,62 (1988) (If requirements ofSEQRA are not met, "the governmental

action is void and, in a real sense, unauthorized").

Compared with these cases, the Brandeis EIS suffers from similar fatal flaws.

Specifically, despite explicit statutory language requiring "current and projected pupil enrollment

of the affected school," the EIS falsely reported the projected 2010-2011 enrollment figures for students at Brandeis High School as 609 instead of over 800.3 Verified Petition, ,,88-89, Ex. 3,

pp. 3, 6. An error of approximately 20%.

The EIS also failed to provide any meaningful discussion of the impact of the proposal on

the affected students, schools and community, as required by Education Law § 2590-h (2-1)(b)(i)

and (ii) and Chancellor Regulation A-190(II)(A)(f). The EIS does not assess the monitoring that

would be needed to ensure safety for all students in space shared by high school students of up to

20 years of age and elementary students as young as five years, nor does it address the

unreasonable supervision and logistical demands on educators and administrators, as well as on

security staff in the building with metal detectors. The EIS is also devoid of details addressing

such issues as fire emergencies, hallway flow, and the like.

According to the CEP School Demographics and Accountability Snapshot, January 20 II, Brandeis High School 20 I 0-20 11 enrollment is reported as 821, available on the DOE website at http://schools.nyc.gov. According to insideschools.org, as of November 2010, enrollment at Brandeis High School was 864.

11

1139541.5

Instead, the EIS merely offers self-serving conclusory statements concerning the affect of the co-location on the impacted students and community. For example, to address the panoply of problems that may arise from throwing kindergartners and first graders into a building filled with teenagers, the EIS offers the following: "The DOE does not anticipate that the co-location of elementary school students with high school students would be detrimental to any of the students attending school in the Brandeis campus. The DOE, in consultation with the Building Council, would allocate contiguous and dedicated space to SACS to ensure the safety of all students." (EIS, p. 4). These boilerplate assertions do not satisfy the requirement of hard-boiled analysis.

The Brandeis EIS ignores also the very real impact on the high-school students of the space re-allocation that is buried in the Brandeis BUP. Verified Petition, Ex. 3 at p.5 ("a proposal of a shared space schedule is included in the attached BUP"). Each of the four high schools that will remain after Brandeis High closes in June 2012 will be forced to surrender precious classroom space: Green Careers will lose 4 full-size classrooms; Global Learning will lose 3 full-size and 1 half-size classrooms; Diploma Plus will lose 2 full-size and 1 half-size classrooms; and Frank McCourt will lose 2 full-size and 1 half-size classrooms. Ex. 4 at pA. The Brandeis EIS includes no explanation of how the high schools and its students utilize the classrooms that DOE will rip from them to support the SACS co-location.

It is clear from the generic conclusion in the EIS that the DOE does not anticipate that the co-location would be detrimental to any of the students in the Brandeis Campus, that the Respondents did not satisfy the "hard look" standard applied to the Education Law. As such, the Chancellor and/or DOE abused their discretion by issuing an EIS limiting the information they provided regarding the impact on the students and community to the obvious, rather than detailing or addressing the impact the co-location would have by placing kindergarten age

12

1139541.5

students with high school age students. See, e.g., Mulgrew, 75 A.D.3d at 414 (respondents abused discretion by limiting the information they provided in the EIS to the obvious).

The DOE also failed to satisfy Education law § 2S90-h (2-a)(b)(v), which requires the EIS to include "recent or planned improvements to such school building." Specifically, the EIS omitted to report the recent $17.5 million investment in building improvements. Verified Petition ~ 104. Instead, the EIS provides, "At present, the DOE is engaged in restructuring the M470 facility to accommodate multiple school organizations. Facilities needs for SACS [Success Academy] would be completed as part of this restructuring." Verified Petition, Ex. 3. The DOE does not describe what "facilities needs" would be completed for SACS, nor does it describe the type of restructuring being done at M470 or the cost of the restructuring. The EIS does not address the potentially substantial expense involved in retrofitting a high school building to serve kindergartners, which will jeopardize the utility of over $17.5 million in renovations and improvements recently invested in that building.

In sum, the foregoing examples make clear that the DOE failed to follow the statutory and regulatory requirements and provide the detailed analysis an EIS mandates. As in Mulgrew and the SEQRA cases, because the EIS omitted the "hard look" and "reasoned elaboration" of the proposal, the Court should annul the PEP vote approving the SACS co-location. Mulgrew, 28 Misc. 3d at 211,902 N.Y.S.2d at 888 (where the respondents failed to comply with the requirements of the Education Law, the appropriate remedy was to find the agency action null and void); Chinese Staff & Workers Ass 'n, 68 N.Y.2d at 369 (agency's failure to comply with the requirements of SEQRA, "in order to further the strong policies served by SEQRA and to not frustrate its important objectives," nullifying and voiding the agency action is the appropriate remedy).

13

1139541.5

IV.

RESPONDENTS' BUILDING UTILIZATION PLAN DOES NOT RESULT IN COMPARABLE AND EQUITABLE SPACE ALLOCATIONS

Respondents circumvented yet another important step in the legislatively directed

process. In 2010, the New York State Charter School Act was amended to require additional

procedures in connection with the co-location of a charter school in an existing public school

building. Education Law § 2853 (3)(a~3)(l), amended May 28, 2010, requires the Chancellor to

develop a Building Usage Plan when a public school building has been identified for co-location

by a charter school. Much like the EIS, the BUP requires the DOE to include specific topics of

information, including, among other things, information concerning the allocation and sharing of

space in the building, justification of the feasibility of how proposed allocations and shared

usage would result in an equitable and comparable use of such public school building, and

building safety and security. Education Law § 2853(3)(a~3)(2).

Chancellor's Regulation A-190(2)(ii), amended in October 2010, similarly requires that

the BUP include, but need not be limited to, the following information:

(a) The actual allocation and sharing of classroom and

administrative space between the charter and non-charter school(s). The allocation shall specify the number and type of rooms to be assigned to each school in the building pursuant to the DOE's Instructional Footprint (the "Footprint"). The plan shall also specify the number and type of rooms not allocated pursuant to the Footprint. Any space not allocated pursuant to the Footprint shall be allocated in the plan equitably among the co-located schools. In determining an equitable allocation, the DOE may consider factors such as the relative enrollments of the co-located schools, the instructional and programmatic needs of the co-located schools, the_physicallocation of the excess space within the building;

(b) A proposal for collaborative usage of shared resources and

spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds, which assures equitable access to such facilities in a similar manner and at

14

1139541.5

reasonable times to non-charter school students as provided to charter school students;

(c) Justification of the feasibility of the proposed allocations

and schedules set forth in clauses (a) and (b) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;

(d) Building safety and security;

(e) Communication strategies to be used by the co-located

schools; and

(f) Collaborative decision making strategies to be used by the

co-located schools including the establishment of a shared space committee pursuant to § 111.B.1 of this regulation.

As set forth in the Brandeis BUP, the methodology used by the DOE to allocate space in

the building took into account the "total students in the building by each school." Verified

Petition, Ex. 4, p. 1. Because the enrollment figure used in the Brandeis EIS for Brandeis High

is understated significantly, the space allocated to that school in the Brandeis BUP also is

understated. Thus, there is less "available space" to be allocated to SACS than reported din the

BUP.

The BUP is also deficient in that it does not include "justification ofthe feasibility of the

proposed allocations ... and how such proposed allocations and shared usage would result in an

equitable and comparable use of such public school building." Educ. L. § 2853 [3](a-

3)(2)(C)(emphasis added); Chancellor's Reg. A-190 § II.A.2.c.

Although the Brandeis BUP includes a "justification" section, it fails to provide a

credible, supportable justification. The Brandeis Campus was designed, and historically

operated, as a high school. The transformation of "Brandeis High" into "Brandeis Campus" has,

until now, not interfered with the essential character of the building, in that the rules of space

allocation applied equally to all the occupants because each of them was a high school. The

15

1139541.5

rules of space allocation for elementary schools are different than, and preferential to, those for

high schools.

For example, 20 elementary school students qualify as a "section," and each section is

entitled to a full-size classroom. By contrast, DOE targets 30 high school students to qualify as a

section and become entitled to the same size classroom. An elementary student is allocated up to

150% of the space allocated to a high school student. Verified Petition, Ex. 3 at ppA-5; Ex. 4 at

pp.1-2. Elementary schools also receive more space through a "cluster room" allocation. The

number of cluster rooms allocated is based on the elementary school's enrollment. Ex. 4 at pp.l-

2. As a result of these disparate allocation rules, SACS students automatically will receive a

disproportionate share of space than existing Brandeis Campus high school students. This results

in a space allocation that is not - and cannot be - either equitable nor comparable.

Furthermore, as detailed in the Verified Petition, the Brandeis Campus high schools will

lose valuable space other than classrooms, such as a kitchen, dance studio, music room and

theater, since these rooms are counted as "regular classrooms" in the Footprint. The non-

compensable loss of such unique and irreplaceable spaces results in irreparable injury which, by

definition, is inequitable (hence the cure being the equitable remedy of injunction).

Moreover, the Brandeis EIS and BUP propose to renovate "four rooms adjacent to the

current cafeteria" to build an additional cafeteria in the Brandeis Campus for the exclusive use

of the SACS students. Ex. 3 at p.3; Ex. 4 at p.3 & n.6.4 This land grab is elective in that the

capacity of the existing cafeteria is sufficient to serve the entire Brandeis Campus. Any space

4 Those four rooms currently store Brandeis High's student records, which would be relocated to a new location in the Brandeis Campus. Verified Petition, Ex. 3 at p.3. According to the DOE Footprint, "adequate storage will be provided for all organizations within the building." Footprint, note 7, annexed hereto as Exhibit 11. Notwithstanding this requirement, neither the Brandeis EIS nor the BUP discloses where the four rooms' worth of student records will be located.

16

1139541.5

allocated for an otherwise unnecessary second cafeteria dedicated only to SACS students is space impermissibly denied to the Brandeis Campus high school students.

Perhaps more importantly, the Education Law and the Chancellor's Regulations actually classify cafeterias as "shared resources and spaces," and require the BUP to propose a "collaborative usage" ofthem "between the charter school and the non-charter schools .... " Educ. L. § 2853 [3](a-3)(2)(B); Chancellor's Reg. A-190 § II.A.2.b. The proposed construction of a separate, dedicated cafeteria for the SACS students, as set forth in the Brandeis BUP, violates not only that requirement, but also the requirement that the required proposal for collaborative usage "assures equitable access to such [shared] facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students." Ibid. Obviously, ifboth cafeterias are built, and each is dedicated to a different clientele, they are not shared, and the customers of one cafeteria will not have any access - let alone equitable access - to the other.

Because the amendments to the Charter School Act are less than a year old, there is no case law interpreting the requirements. However, the concept is analogous to the requirements set forth in Educ. L § 2590-h concerning the EIS. Accordingly, the court's approach to the requirements of the EISs in the Mulgrew case are instructive. As set forth above, the court in Mulgrew determined that the respondents' failure to comply with the substantive requirements of Educ. L. §2590-h(2-a) by failing to meaningfully address in the EIS one ofthe subjects required by the statute, was an abuse of discretion warranting annulment of the PEP vote in favor of the school closings. Mulgrew, 75 A.D.3d at 414.

Similarly, because the DOE did not include in the Brandeis BUP any meaningful detail of whether the co-location would result in equitable and comparable shared space, the court should find the BUP does not comply with Educ. L. § 2853(3)(a-3)(2) and reject the PEP vote which

17

1139541.5

was based, in part, on the BUP. See Mulgrew, 28 Misc. 3d at 212; see also Appeal of Ivana

Espinet, _ Ed. Dept Rep. _, Decision No. 16212 (Mar. 31,2011) (annulling PEP vote when

DOE failed to properly analyze in the BUP the impact of the co-location of a charter school into

an existing public school, including the failure to adequately address the allocation of shares

spaces such as the gymnasium and library).

v.

RESPONDENTS DID NOT COMPLY WITH ApPLICABLE NOTICE REQUIREMENTS

The Education Law, the Chancellor's Regulations, and the PEP By-Laws require PEP to

issue a Notice at least forty-five days prior the meeting at which its members will vote on a

proposed significant change of utilization of a public school building. Educ. L. § 2590-g [8](a);

Chancellor's Reg. A-190 § u.c.z, PEP By-Laws § 2.5. 1 (h) at pp.7-8.

Although the PEP Notice was issued timely, it was defective in that it failed to provide all

the information required by the Education Law, the Chancellor's Regulations, and the PEP By-

Laws. Specifically, it omitted the date of the Joint Hearing. Compare Verified Petition, Ex. 6 §

V ("To be determined") and Educ. L. § 2590-g [8](a)(iv)("Notice of the proposed item under

[PEP] consideration shall include: '" (iv) date, time and place of any hearing regarding the

proposed item, if applicable")( emphases added); Chancellor's Reg. A-190 § lLC.2.d (same).

Additionally, the PEP Notice was published only in the English language, which violates

Executive Order No. 120 § 2.d.i, the DOE Language Access Plan, and Chancellor's Regulation

A-663 §§ I1LB, V.A. Although the PEP Amended Notice was published in both English and

Spanish, the Amended Notice was not issued until December 22, 2010 ~ less than the required

forty-five days prior to the February 1,2011 PEP meeting at which the Brandeis co-location

proposal was going to be considered. See Verified Petition, Exs. 7, 12.

18

1139541.5

PEP, therefore, failed to provide proper and effective timely notice prior to the meeting at

which its members considered and, by the least possible number of votes, voted to approve the

Brandeis co-location proposal.

Because PEP failed to give timely notice, the PEP vote approving the co-location should

be nullified. See Mulgrew, 75 A.D.3d at 415 (PEP vote approving school closings annulled

when DOE failed to comply with notice requirements of Education Law § 2590-h C2-a».

VI.

THE DOE FAILED TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT

The City Environmental Quality Review Act C"CEQR") implements the State

Environmental Quality Review Act, Environmental Conservation Law, Article 8 ("SEQRA").

CEQR and SEQRA require lead agencies to consider both the short- and long-term and primary

and secondary effects of a proposed action in determining whether the action may have a

significant effect on the environment so as to require the preparation of an Environmental Impact

Statement. Chinese Staff & Workers Ass'n v. City of New York, 68 N.Y.2d 359, 361 (1986).

Unlike their high school counterparts, elementary school students eligible for

transportation usually do not use mass transit. Instead, they are provided with "yellow bus"

transportation. The SACS students eligible for transportation likely will be provided "yellow

bus" transportation.

The introduction of meaningful numbers of yellow buses to the Brandeis Campus will

result in significant traffic congestion, especially given the proximity of P .S. 9 and its already

extensive use of yellow buses (10 in the morning; 11 in the afternoon).

Upon information and belief, given the likelihood of greater geographic diversity among

SACS students than PS 9 students, SACS students will require an even greater number of buses

than PS 9 relative to its enrollment. Alternatively, to the extent SACS students do not utilize 19

1139541.5

yellow buses for transportation, a large proportion of SACS students are likely to arrive via taxi or private automobile, causing an even greater environmental impact than the additional yellow buses would create.

Every yellow bus, taxi or private automobile utilized by SACS students represents an additional vehicle coming to the Brandeis Campus which would not be utilized if the Brandeis Campus were utilized solely for high school students.

Notwithstanding the foregoing, and the potential environmental impact resulting therefrom, in derogation of its duties as the lead agency for such matters, DOE failed to implement an environmental quality review, and failed to produce an environmental impact statement (including a traffic study) relating to the Brandeis co-location proposal. DOE, therefore, violated the State and City Environmental Quality Review Acts.

Furthermore, upon information and belief, building materials in the Brandeis Campus may contain polychlorinated biphenyls (,<PCBs") and other hazardous substances. Neither the EIS nor the BUP prepared by DOE explore this issue in any way, let alone in detail. An environmental impact statement is required to do so, and to advise whether the planned construction work will disturb any such materials and, if so, the steps that would be taken to minimize the risk of exposure to students, teachers, administrators and staff.

As a result, the PEP vote approving the co-location should be nullified. See, e.g., Chase v. Bd of Educ., 188 A.D.2d 192, 199 (1993) (annulling vote approving referendums to alter school building and construction of a bus garage when Board of Education failed to comply with SEQRA by failing to issue final environmental impact statement prior to vote); see also Chinese Staff & Workers Ass 'n, 68 N.Y.2d at 369 (where agency failed to comply with the requirements ofSEQRA and CEQRA.., the governmental action should be null and void); E.F.s. Ventures Corp. v. Foster, 71 N.Y.2d at 371 (same).

20

1139541.5

CONCLUSION

For the foregoing reasons, as well as on the Verified Petition, Petitioners respectfully

request that the Court issue a judgment pursuant to CLPR Article 78 (1) annulling the vote of the

PEP to co-locate SACS into the Brandeis Campus; (2) declaring the PEP vote null and void; (3)

directing or ordering Respondents to comply with their obligations under Articles S2-A and 56 of

the Education Law, the Chancellor's Regulation A-190 and the State and City Environmental

Quality Review Acts; (4) enjoining permanently the SACS co-location in the Brandeis Campus;

and (5) for such other and further relief in Petitioners' favor as this Court may deem just and

proper.

Dated: New York, New York April 11, 2011

PHILLIPS NIZER LLP

BY:v(~

arc Andrew Landis

Jon Schuyler Brooks Meagan A. Zapotocky Attorneys for Petitioners

666 Fifth Avenue

New York, New York 10103-0084 (212) 977-9700

21

1139541.5