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LISA STEGLlCH, individually and as parent and natural guardian of ALEXANDER HERLllIY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian ofOMARI 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, KA VERY 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 ALIY A CL UNIE, infant,
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK aJkIa 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,
UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, MARTIN AARES, individually and as parent and natural guardian of infant SABINE BALOU-AARES, GABRIEL BAEZ, individually and as parent and natural guardian of infant CHRISTOPHER BAEZ, LISBETH DELOSSANTOS, individually and as parent and natural guardian of infant
MIY AH MUZO, ELANA KILKENNY, individually and as
arent and natural guardian of infant LIAM KILKENNY,
Index No.1 04300/11
lAS Part 29 (Torres, J.)
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS ARTICLE 78 PETITION
ARNOLD & PORTERLLP Stewart D. Aaron
Emily A. Kim
399 Park Avenue
New York, New York 10022 (212) 715-1000
Attorneys for Proposed IntervenorRespondents
ELISSA KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and as parent and natural guardian of infant ROBERT MAXWELL KUHAR, LATISHA SINGLETARY, individually and as parent and natural guardian of infant RANIY A GARRETT-WELLS, MICHAEL SUCHANEK, individually and as parent and natural guardian of infants SALLY SUCHANEK and AMELIA SUCHANEK, and DAVID TURNOFF, individually and as parent and natural guardian of infant HUNTER KIM-TURNOFF,
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
A. Success Academy 3
B. Co-location in the Brandeis Campus 7
C. Petitioners' Lawsuit and Proposed Parent and Infant Intervenors 9
D. Community Support for Success Academy 10
I. THE COMMISSIONER HAS EXCLUSIVE ORIGINAL JURISDICTION OVER
THIS MATTER 11
II. THE COURT SHOULD DISMISS THIS PROCEEDING FOR FAILURE TO
A. Petitioners Failed to Exhaust Under CPLR Article 78's Explicit
Exhaustion Requirement 13
B. Petitioners Failed to Exhaust by Not Appealing Within the Allotted
The Absence of an Exhaustion Requirement Would Defeat the Purpose of CPLR 2853(3)(a-5)'s Expedited Appeals Process for Co-location
III. IN THE ALTERNATIVE, THE COURT SHOULD DISMISS THIS PROCEEDING
UNDER THE DOCTRINE OF PRIMARY JURISDICTION 21
IV. EVEN IF THE COURT WERE TO REACH THE MERITS; THE PETITION MUST FAIL, AS THE EDUCATIONAL IMPACT STATEMENT AND THE BUILDING
USAGE PLAN COMPLY WITH STATUTORY REQUIREMENTS 22
A. The Proper Standard of Review is Substantial Compliance 23
B. The DOE Properly Determined that the Brandeis Campus Was Under-
Utilized , 26
C. The EIS and the BUP Comply with Statutory Requirements 27
- 1 -
TABLE OF AUTHORITIES
Albano v. Kirby,
36 N.Y.2d 526, 369 N.Y.S.2d 655 (1975) 16
Appeal of Espinet, Decision ofComm'r of Educ. No. 16,212 (Mar. 31,2011),
available at http://www.counsel.nysed.govlDecisions/volume50/dI6212.htm passim
Appeal of Battis, Decision ofComm'r of Educ. No. 16,115 (Aug. 2, 2010),
avaialbale at http://www.counsel.nysed.govlDecisions/volume50/d16115.htm passim
Appeal of Santos, Decision ofComm'r of Educ. No. 16,116 (Aug. 2,2010),
available at http://www.counseLnysed.govlDecisions/volume50/d16116.htm 23,24
Bergstein v. Board of Educ. of Union Free Sch. Dist. # 1,
34 N.Y.2d 318,357 N.Y.S.2d 465 (1974) 22
Board of Educ. v. Anderson,
140 Misc. 2d 1088,532 N.Y.S.2d 330 (Sup. Ct. Westchester Co. 1988) 22
Capers v. Giuliani,
253 A.D.2d 630,677 N.Y.S.2d 353 (1st Dep't 1998) .12
City Servs., Inc. v. Neiman,
77 A.D.3d 505, 909 N.Y.S.2d 703 (1st Dep't 2010) 12, 13
Cohn v. Board of Educ. of Hammondsport,
58 AD.2d 977, 397 N.Y.S.2d 255 (4th Dep't 1977) 22
Daniel v. NYS DHCR,
179 Misc. 2d 452,683 N.Y.S.2d 404 (Sup. Ct. N.Y. Co. 1998) 19
Elliott v. City of Binghamton,
61 N.Y.2d 920, 474 N.Y.S.2d 722 (1984) .15
Elliott v. City of Binghamton,
94 A.D.2d 887, 463 N.Y.S.2d 554 (3d Dep't 1983), aff'd,
61 N.Y.2d 920,474 N.Y.S.2d 722 (1984) 15, 16, 18, 19
Hessney v. Board of Educ. of Pub. Schs. a/Tarry towns,
228 A.D.2d 954,644 N.Y.S.2d 826 (3d Dep't 1996) 21, 22
Jamaica Recycling Corp. v. City of New York,
12 Misc. 3d 276,816 N.Y.S.2d 282 (Sup. Ct. N.Y. Co. 2006) 22
James v. Board of Educ. of City of NY,
42 N.Y.2d 357,397 N.Y.S.2d 934 (1977) 14, 15,25
Kingsbrook Jewish Med Ctr. v. Allstate Ins. Co.,
61 AD.3d 13,871 N.Y.S.2d 680 (2d Dep't 2009) .4
Langston ex rel. Langston v. Iroquois Cent. Sch. Dist.,
291 AD.2d 845, 736 N.Y.S.2d 815 (4th Dep't 2002) 21, 22
Lehigh Portland Cement Co. v. NYS DEC,
87 N.Y.2d 136,638 N.Y.S.2d 388 (1995) 18
Levine v. Board of Educ. of NY.,
186 AD.2d 743, 589 N.Y.S.2d 181 (2d Dep't 1992) 18
Lezette v. Board of Educ. of Hudson City Sch. Dist.,
35 N.Y.2d 272,360 N.Y.S.2d 869 (1974) 22
Markow-Brown v. Board of Educ. of Port Jefferson Pub. Schs.,
301 AD.2d 653, 754 N.Y.S.2d 326 (2d Dep't 2003) 21, 22
Mirenberg v. Lynbrook Union Free Sch. Dist. Bd. of Educ.,
63 AD.3d 943,881 N.Y.S.2d 159 (2d Dep't 2009) 18
Mulgrew v. Board ofEduc. of City ofSch. Dist. of City of N. Y,
75 AD.3d 412,906 N.Y.S.2d 9 (1st Dep't 2010) 17, 23, 24
Mulgrew v. Board ofEduc. of City ofSch. Dist. of City of NY, 28 Misc. 3d 204,902 N.Y.S.2d 882 (Sup. ct. N.Y. Co.),
aff'd ,75 A.D.3d 412,906 N.Y.S.2d 9 (lst Dep't 2010) 17,23,24
O'Connor v. Emerson,
196 A.D. 807, 188 N.Y.S. 236 (4th Dep't 1921) 11
Onteora Cent. Sch. Dist. v. Onteora Non-Teaching Emp. Ass 'n,
79 AD.2d 415, 438 N.Y.S.2d 386 (3d Dep't 1981) .16, 22, 25
Pocantico Home & Land Co. v. Union Free Sch. Dist. of Tarrytown,
20 AD.3d 458, 799 N.Y.S.2d 235 (2d Dep't 2005) 12
Podolsky v. Daniels,
21 AD.3d 559,799 N.Y.S.2d 917 (2d Dep't 2005) 16
Purr Feet World, Inc. v. City of Cortland,
57 AD.3d 1254, 869 N.Y.S.2d 698 (3d Dep't 2008) 16
SchiavonelShealFrontier-Kemper v. NYC DEP,
274 AD.2d 586, 712 N.Y.S.2d 393 (2d Dep't 2000) 16, 17
- iii -
Sohn v. Calderon)
78 N.Y.2d 755,579 N.Y.S.2d 940 (1991) 11
Soldano v. Bayport-Blue Point Union Free Sch. Dist.,
294 A.D.3d 891,815 N.Y.S.2d 712 (2d Dep't 2006) 26, 27
Vetere v. Allen,
15 N.Y.2d 259, 258 N.Y.S.2d 77 (1965),
cert. denied, 382 U.S. 825 (1965) 21, 24, 25
Watergate II Apts. v. Buffalo Sewer Auth.,
46 N.Y.2d 52,412 N.Y.S.2d 821 (1978) 12, 24
STATUTES, RULES, AND REGULATIONS:
N.Y. C.P.L.R. § 217(1) 19
N.Y. C.P.L.R. Article 78 passim
N.Y. C.P.L.R. Rille 3211 1
N.Y. C.P.L.R. § 7801 · 13, 14
N.Y. C.P.L.R. § 78'04(f) 1
N.Y. Educ. Law § 310 passim
N.Y. Educ. Law § .2590-g 11
N.Y. Educ. Law § 2590-g(8)(a)(iv) 29
N.Y. Educ. Law § 2590-h(2-a) 7,23
N.Y. Educ. Law § 2590-h(2-a)(b)(i) 27, 28
N.Y. Educ. Law §2590-h(2-a)(b)(v) 28
N.Y. Educ. Law § 2590-h(2-a)(d) 7
N.Y. Educ. Law § 2590-h(2-a)(e) 11
N.Y. Educ. Law §§ 285.0-2857 3, 22
N.Y. Educ. Law § 2853(1)(a) 4
N.Y. Educ. Law § 2853(3)(a-3) 28, 29
N.Y. Educ. Law § 2853(3)(a-5) passim
N.Y. Educ. Law § 2854 3, 4, 6
N.Y. Educ. Law § 2855(1)(a) 4
.N.Y. Educ. Law § 2856 3
N.Y. Educ. Law § 3013 (3)(a) 22
State Environmental Quality Review Act, Environmental Conservation Law,
Article 8 23, 24,30
8 N.Y.C.R.R. § 275.16 18, 19
Chancellor's Regulation A-190 passim
Mayor's Executive Order No. 120 § 2.d.i 29
2010 Sess. Law News of N.Y. Ch. 101 (A.11310) (McKinney) ~ 17
N.Y. Spons. Memo., 2010 A.B. 11310 (Oct. 29, 2010) 20
N.Y. Dep't of Educ. Reg. A-663 29
Upper West Success Academy Charter School a!kIa Success Academy Charter School
("Success Academy");' individuals Matthew Morey, Martin Aares, Gabriel Baez, Lisbeth
Delossantos, Elana Kilkenny, Elissa Klein, Rebecca Kuhar, Latisha Singletary, Michael
Suchanek, and David Turnoff (the "Parent Intervenors"); and infants Thomas Morey, Claire
Morey, Sabine Ballou-Aares, Christopher Baez, Miyah Muzo, Liam Kilkenny, Ava Klein,
Robert Maxwell Kuhar, Raniyah Garrett-Wells, Sally Suchanek, Amelia Suchanek, and Hunter
Kim-Turnoff, by their respective parents and natural guardians (the "Infant Intervenors"-
together with Success Academy and the Parent Intervenors, the "Success Respondents") submit
this memorandum oflaw in support of their motion to dismiss the Article 78 Petition brought by
the petitioners, pursuant to Section 7804(f) and Rule 3211(a)(l), (a)(2), and (a)(7) of the New
York Civil Practice Law and Rules. The Success Respondents urge the Court to dismiss the
Petition and/or deny all relief sought by the petitioners.
Out of 1600 applicants, 184 students were selected by lottery to attend Success Academy.
Fifteen percent were accepted by virtue of a preference given to English Language Learners.
Nearly all ofthe remaining students were given a preference because they are zoned for or attend
poorly performing public schools. The parents of these children are striving for better
educational options for their children and have chosen Success Academy for that reason ..
The petitioners seek to deny these parents their choice by seizing on arguments that, at
best, nitpick to an absurd degree and, at worst, engage in unseemly fearmongering. The
petitioners object, for example, to Success Academy's "geographic diversity," i.e., to students
Success Academy's original legal name, "Success Academy Charter School," has been changed to "Upper West Success Academy Charter School." Sedlis Affidavit, dated April 19, 2011 ("Sedlis Aff. (4/19111)"), ~ 5.
invading the Upper West Side, claiming that this will somehow cause pollution.' They also claim that the failure to require Success Academy students to go through metal detectors "endangers every student (and person)" in the building, insinuating that these elementary school students will bring weapons to schooL Petitioners' Verified Petition ("Verified Pet.") ~ 96.
The petitioners seize on arguments such as these, as well as technical quibbles, to overturn what was a fundamentally open process. The siting of charter schools is determined by the New York City Department of Education's Panel for Educational Policy (the "DOE's PEP"), which approved the co-location of Success Academy in an existing public school. The law is designed to ensure that there is disclosure prior to the PEP vote so that the public can have input. Here, there was ample disclosure and input. The petitioners' own papers note that 371 community members attended the Success Academy joint co-location hearing and that over 100 people spoke at this hearing .. Verified Pet. ~ 65. They further note that 968 people signed a petition opposing Success Academy's co-location. Id. ~ 67.
The petitioners do not claim, nor could they, that this decision was made in the dead of night, that they or other members of the public were somehow prevented from expressing their views, or that they were misled or tricked into supporting this proposal. Rather, what they really object to is that "despite the overwhelming public opposition to the proposed co-location ... the PEP members voted ... in favor of the proposal." Verified Pet. ~ 68 (emphasis supplied). In short, the petitioners do not like that the PEP rejected their opposition.
To overturn that outcome, the petitioners have combed through the co-location plan and the Building Usage Plan in a painstaking effort to unearth any possible technical flaw that could even remotely be used as a basis for annulling the PEP vote. None of these alleged deficiencies,
Petitioner's Memorandum of Law in Support of Article 78 Petition, dated April 11, 2011 ("Pets.' Mem."), at
however, interfered with or undermined in any meaningful way the process of informing the
public about the proposed co-location and the soliciting of public input.
Moreover, the petitioners are in the wrong forum, and they have come too late. They
were required to exhaust their administrative remedies by first bringing their challenge to the
New York State Education Department Commissioner of Education (the "Commissioner")
within thirty days of the PEP approval of the co-location. They chose not to. Instead, they
bypassed the Commissioner altogether in order to come directly to this Court. This is not
permitted under the law. The petitioners' failure to exhaust their administrative remedies within
the permitted time period is fatal to this proceeding, which should accordingly be dismissed.
A. Success Academy
Success Academy is a not-for-profit charter elementary school that plans to open its doors in August 2011.3 It will open in an existing public school building called the Brandeis·
Educational Campus, Building M470 (the "Brandeis Campus"), in Manhattan's Upper West Side.4 Verified Pet. Ex. 3 (Educational Impact Statement ("EIS")), at 1. The Brandeis Campus
also houses five public high schools, including the Louis D. Brandeis High School (03M470),
the Urban Assembly School for Green Careers (03M402), the Global Learning Collaborative
(03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417). Id.
Like all charter schools, Success Academy receives public funding and is a free
alternative to public schools. See N.Y. Educ, Law §§ 2856, 2854(2). While, as a charter school,
Success Academy is not subject to certain laws and regulations that apply to other public
Sedlis Aff. (4/19/11) , 3, 4. Success Academy was established pursuant to Article 56 ofN ew York State Education Law, N.Y. Educ. Law §§ 2850-2857, and approved by its charter authorizer, the State University of New York. Sedlis Aff. (4/19/11)' 4; N.Y. Educ. Law §§ 2850-2857.
The Brandeis Campus is located at 145 West 84th Street, New York, New York 10024.
- 3 -
schools, it is accountable to achieving high academic standards, which are set forth in its charter.
See id. § 2854(1); Exhibit ("Ex.") 1 to Affirmation of Emily A. Kim, dated April 25, 2011 ("Kim
Affirm. (4/25/11)"). Failure of the school to produce high student performance risks nomenewal
of its charter, which has a term of five years. Id. §§ 2853(1)(a), 2855(l)(a).
For the 2011-2012 school year, Success Academy will serve kindergarten and first grade,
and it plans to add one grade each year until it serves kindergarten through eighth grade. Exs. 2
and 3 to Kim Affirm. (4/25/11). The school will primarily serve students residing within New
York City Community School District 3 ("School District 3"), which covers the west side of
Manhattan, including Central Harlem, Manhattan Valley, the Upper West Side, and Lincoln
Success Academy is operated by the Success Charter Network ("Success Network"), a
not-for-profit charter management organization that also operates seven other public charter
schools in Manhattan and the Bronx, including five schools in Harlem. Sedlis Aff. (4/19/11)
~~ 2_3.6 The philosophy behind Success Network schools is to provide excellent free, public
education with a view towards every child attending and succeeding in college. Id. ~ 7; Ex. 4 to
Kim Affirm. (4/25/11). Success Network schools utilize innovative strategies to achieve and
school day, which is two hours more, on average, than the New York City public school day; a
motivate high student performance. Some of the innovative practices include an eight-hour
longer school year that starts mid-August (most schools begin after Labor Day in September);
Sedlis Aff. (4/19/11) 'if 14; Verified Pet., Ex. 3 (EIS), at 2,5; N.Y. City Dep't ofEduc., District 3 Elementary School Directory 2008-2009, at iv, available at http://schools.nyc.govlNRlrdonlyres/73090290-5721-4C95-B263- 00B0094A5CBAlOlESD30809DirectoryO 11209notranslanguageenglishversion.pdf (last visited April 23 , 2011). The Success Respondents cite throughout this memorandum to documents prepared by the New York State or New York City governments or their agencies that are available on their respective websites. Courts may take judicial notice of such documents. See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD.3d 13,20, 871 N.Y.S.2d 680, 685 (2d Dep't 2009).
6 In August 2011, another Success Network school, the Brooklyn Success Academy Charter Schooll, will also
open its doors. Sedlis Aff. (4119111) 'if 3.
science class five days per week starting in kindergarten; chess class for all students; and many
other innovative practices. Sedlis Aff. (4/19/11) ~ 8; see also Ex. 5 to Kim Affirm. (4/25/11).
These innovations, combined with hard work, persistence, dedication, leadership, and
faith that all children have the ability to succeed, have worked. Success Network schools have
achieved extraordinary success in motivating and educating their students. For example, the.
students at one of the Success Network schools located in Harlem, Harlem Success Academy
Charter School 1 ("Harlem Success Academy"), have had the following achievements:
• In 2009, 100% of Harlem Success Academy's third grade students passed the New York statewide math tests; 95% passed the English Language Arts ("ELA") tests.'
• 'In 2010, the state raised the passing score by 30%.8 Despite the higher bar, 91 % of Harlem Success Academy's students passed the statewide tests.9 Harlem Success Academy's scores were the highest of anti public zoned elementary or kindergartento-8th grade school in School District 3.1 By comparison, the pass rate citywide was 51 %. 11 The pass rate in School District 3 was 57%.12 And the pass rate in School District 5, covering Central Harlem north of the school, was 34.5%.13
7 See Ex. 6 to Kim Affirm, (4/25/11) at 15, 16 (State Education Dep't, The State University of New York
("NYSED"), The New York State School Report Card Accountability and Overview Report 2009 -10: Harlem Success Academy Charter Schoo!).
See NYSED, Press Release, Grade 3-8 Math & English Test Results Released: Cut Scores Set to New College-Ready Proficiency Standards, July 28, 2010, available at http://www.oms.nysed.gov/press/Grade3- 8_Results07282010.htmI (last visited April 18, 2011).
Ex. 6 to Kim Affirm. (4/25/11), at 14 (averaging 3rd and 4th grade scores for ELA and Math). Verified Pet., Ex. 3 (E1S), at 2.
11 See N.Y. City Dep't of Educ., NYC 2010 Mathematics & English Language Arts Citywide Test Results Grades
3-8, at 2 (July 2010) (averaging 3rd and 4th grade scores for ELA and Math), available at http://schools.nyc.gov/accountabiIity/ReportslDatalTestResu1ts/20 1 0_ MATH _ ELA _ NYC _FULL %20DECK.pdf (last visited Apr. 25, 2011).
12 See NYSED, The New York State District Report Card Accountability and Overview Report 2009 -10: New
York City Geographic District # 3, at 18, available at http://www .nystart.gov/publicweb-rc/20 1 0/44/ AOR-20 1 0- 310300010000.pdf(last visited April 24, 2011) (averaging 3rd and 4th grade scores for ELA and Math).
13 See NYSED, The New York State District Report Card Accountability and Overview Report 2009 -10: New
York City Geographic District # 5, at 17, available at http://www.nystart.gov/publicweb-rc/2010/c4/AOR-2010- 3105000l0000.pdf(last visited April 24, 2011) (averaging 3rd and 4th grade scores for ELA and Math).
- 5 ~
• Additionally, in 2010, Harlem Success Academy outperformed highly sought-after public schools in both the Upper East and Upper West Sides of Manhattan, even topping the affluent suburb of Scarsdale. 14
Success Academy aims to follow in the same tradition of high student achievement when it
opens its doors in August 2011. Sedlis Aff. (4119/11) ~, 3, 6, 9; see also Ex. 1 to Kim Affirm.
The remarkable academic achievement of students attending Success Network Schools
has not gone unnoticed. In 2010, Harlem Success Academy was featured in two high-profile
documentary films concerning public school education and was recognized for its extraordinary
performance.P Indeed, the immediate communities of Success Network schools have likewise
taken note. This year, as of April 1, 2011, there were 8,695 applications for Success Network's
nine schools. Sedlis Aff. (4/25/11),3. For Success Academy alone, while the school will be
able to accommodate approximately 184 students in kindergarten and first grade for the
children in School District 3. Sedlis Aff. (4/19/11)" 11-12; Verified Pet., Ex. 3 (EIS), at 2. As
upcoming school year, there were over 1600 applications, of which 700 applications were from
required by N ew York charter law when there are more applications than available seats, on
April 6, 2011, Success Academy held a lottery to fill its 184 seats. N. Y. Educ. Law §
2854(2)(b); Sedlis Af£ (4/19/11), 13. Success Academy applies a lottery preference, first, for
siblings of admitted students; second, for English Language Learners and children zoned for or
attending poorly performing public schools in School District 3; third, for English Language
14 E.g., NYSED, The New York State School Report CardAccountability and Overview Report 2009-10: PS 6 Lillie D Blake, 14, available at https://www.nystart.gov/publicweb-rc/2010/d8/AOR-201 0-31 02000 10006.pdf, (last visited Apr. 19,2011) (P.S. 6's 3rd and 4th graders had a combined math and ELA pass rate of 86%); The New York State School Report CardAccountability and Overview Report 2009 - 10: PS 199 Jesse Isador Straus, 14, available at https://www.nystart.gov/publicweb-rc/2010/8b!AOR-201 0-31 03000 10 199.pdf (last visited Apr. 24, 2011) (p.S. 199's 3rd and 4th graders had a combined math and ELA pass rate of 86%); The New York State School Report Card Accountability and Overview Report 2009 - 10: Scarsdale Union Free School District, 17, available at https:/!www.nystart.gov!publicweb-rc/20 10/52! AOR -2010-662001030000. pdf (last visited Apr. 24, 2011) (Scarsdale's 3rd and 4th graders had a combined math and ELA pass rate of 85%).
15 Waiting for Superman (Electric Kinney Films 2010); The Lottery (Great Curve Films 2010).
Learners and children who are zoned for or attending poorly performing public schools who
reside outside of School District 3; and, fourth, for all other children who reside within School
District 3. Sedlis Aff. (4/25/11) ~ 4. Fifteen percent of the students who were accepted to
Success Academy for the 2011-12 school year are English Language Learners; and nearly all of
the remaining accepted students are zoned for or attending poorly performing schools. Id. ~~ 4-
B. Co-location in the Brandeis Campus
In October of2010, the DOE identified the Brandeis Campus as an under-utilized public
school building. Verified Pet., Ex. 1, at 3. As such, it issued, on December 17,2010, as required
by New York charter school law, a public notice proposing the "co-location" of Success
Academy in the Brandeis Campus with the five public high schools already located there (the
"Co-located High Schools"). 16 Id., Ex. 6; N.Y. Educ. Law § 2590-h(2-a)(d). The public notice
also provided information about an upcoming joint hearing on the matter, as well as a subsequent meeting during which the PEP would vote on the co-location proposal. Verified Pet., Exs. 6-7_n
The DOE further disseminated, on December 17,2010, an EIS describing the proposed colocation in detail and a Building Utilization Plan (the "BUP"), as required by law.I8
On January 25, 2011, the DOE held the joint public hearing. Verified Pet. ~ 65; see N.Y.
Educ. Law § 2590-h(2-a)(d). The petitioners' state that 371 community members attended the
hearing, and 112 people spoke. Id One week after the joint public hearing, on February 1,
The notice was subsequently amended on December 22,2010. Verified Pet., Ex. 7.
17 The PEP consists of thirteen members and the DOE Chancellor. Each borough president appoints one
member, and the mayor appoints eight members. The Chancellor serves as a non-voting member. See http://schools.nyc.gov/AboutUslleadershipIPEP/default.htm (last visited April 24, 2011).·
18 Verified Pet., Ex. 6, at 2, Exs. 3,4; N.Y. Educ. Law §§ 2590-h(2-a); 2853(3)(a-3); N.Y. City DOE, Regulation
of the Chancellor A-190, "Significant Changes in School Utilization and Procedures for the Management of School Buildings Housing More Than One School," (Oct. 7,2010) ("Chancellor's Regulation A-190" or "Reg. A-190").
- 7 -
2011, the PEP held the final meeting and vote on the proposal.i" Thousands of community
members attended the meeting, and, as at the joint public hearing, anyone who wanted to speak
on the subject was permitted to speak. Sedlis Aff. (4/2S/11) ~ 6. Because of the large number of
people who spoke, the meeting went into the early morning hours of the next day. Id The PEP
voted in favor of co-locating Success Academy in the Brandeis Campus.i"
On April 13, 2011, a Success Academy staff member and a photographer visited the
Brandeis Campus and viewed several of the rooms that Success Academy anticipates it will be
using for the upcoming school year. Affidavit of Nancy Borowick, dated Apri12S, 2011
("Borowick Aff."), ~~ 3-4. None of these rooms were then in use as classrooms. Id ~ 21 & Exs.
A-O. In fact, many were in complete disarray-and had clearly not been in use as classrooms
for some time. Id.'~ 6-8, 10-1S, 22 & Exs. A-C, E-J. Some of these rooms stored rows of file
cabinets containing, at a glance, files from up to eleven years ago. Id ~~ 6-8, 17-18,23 & Exs.
A-C, L-M. Piles of boxes, many of which were tom and thrown in every direction, appeared to
have been flung on top of the file cabinets. Id ~~ 7-8, 23 & Exs. B-C. Another room was strewn
with trash, stacks of stools, and old, broken furniture with pieces of paper that read "Discard"
taped to them. ld ,~ 10-1S,24 & Exs. E-J. Yet another room stored a variety of equipment,
including overhead projectors and televisions. ld ~~ 9, 2S & Ex. D. These rooms were clearly
available for use by Success Academy. Id ~ 21. Pictures of these rooms are attached as exhibits
to the accompanying Borowick Affidavit.
19 PEP, Minutes of Action: Public Meeting of the Panel for Educational Policy, 2, Feb. 1,2011, available at
http://schools.nyc.gov/NRlrdonlyres/02AA7F36-EB67-4EBD-A 1 EO-569 A4EEB4AB4/98724/moalI12.pdf.
See supra, n. 19.
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c. Petitioners' Lawsuit and Proposed Parent and Infant Intervenors
Over two months after the PEP vote, on April 8, 2011, the petitioners brought this Article 78 proceeding against the DOE, the PEP, and the DOE Chancellor in an effort to prevent Success Academy from joining the Brandeis Campus and opening its doors this fall. In bringing this petition, they bypassed appeal to the Commissioner, as first required under Section 7801 of the New York Civil Practice Law and Rules (the "CPLR").
The petitioners are parents of eleven children attending three of the five Co-Located High Schools. Verified Pet. ~~ 5-15. They seek to annul the PEP vote and to permanently enjoin the
co-location, and 'they request declaratory judgment andlor an order concerning purported
violations by the DOE of various statutory requirements. Verified Pet. ~~ 143-61.
Upon learning of the lawsuit, parents of twelve children who have been selected by
lottery to attend kindergarten at Success Academy starting August of2011 (the "Parent and
Infant Intervenors") joined Success Academy in requesting leave of this Court to permit them to intervene as additional respondents.t' The Parent and Infant Intervenors all reside within School District 3.22 Each of the twelve Infant Intervenors is zoned to attend or is attending a public elementary school that received a grade of "D" or "F" for student performance on the DOE's Progress Report for the 2009-2010 school year.23 Their parents intend to enroll them in Success
Academy this fall, or at least view Success Academy as one of their top school choices for their child or children."
Sedlis Aft'. (4/19/11) ~ 16; Success Respondents' Motion to Intervene, Apr. 19,2011, at 1.
Success Respondents' Motion to Intervene, Apr. 19,2011, at 6 n.l? (citing Affidavits of Parent Intervenors). Success Respondents' Motion to Intervene, Apr. 19,2011, at 6 n.18 (citing Affidavits of Parent Intervenors). Success Respondents' Motion to Intervene, Apr. 19,2011, at 6 n.19 (citing Affidavits of Parent Intervenors).
D. Community Support for Success Academy
The over 1600 applications for Success Academy (700 from residents of School District
3) speak volumes about the community's desire for another high-achieving public elementary
school option. Additionally, even among some associated with the Co-located High Schools,
Success Academy has received strong support. Richard Kahan, the founder of the Urban
Assembly School for Green Careers ("Green Careers"), one of the Co-Located High Schools, has
stated publicly that he welcomes the school. Affidavit of Richard Kahan ("Kahan Aff."), 12.
Mr. Kahan has stated the following:
[T]he type of school with which we share space, whether district or charter, is not important. What matters most is whether they are schools with strong and inspired leadership that can contribute to an overall culture of excellence and high expectations.
I believe Success Academy is one such school. '" [T]he Success Charter Network ... operates some of the highest performing public elementary schools--district or charter-in New York City. I have seen Success Charter Network serve as a pioneer, much like Urban Assembly, in creating and promoting innovative ways to train and retain highly effective leaders and teachers, which I believe is the key to successful schools and students.
It is my belief that a collaboration between Green Careers and the other colocated high schools, on the one hand, and Success Academy, on the other hand, will benefit all of the co-located schools ....
I welcome the fact that Green Careers will be sharing space in the Brandeis Campus with Success Academy starting this fall. . .. As the BUP reflects, it is my judgment that it is feasible to accommodate Success Academy in the Brandeis Campus. If Success Academy does not move in to the Brandeis Campus, I believe another school will.
Kahan Aff. ,,8-12. No families from Mr. Kahan's school, Green Careers, have joined in the
petitioner's lawsuit. Id.' 5; Verified Pet. ,,5-15. Nor, for that matter, have any families from
. another Co-located High School, the Louis D. Brandeis High School. See Verified Pet. ,,5-15.
The Success Respondents urge the Court to dismiss this Article 78 proceeding and/or
deny all relief sought by the petitioners.
I. THE COMMISSIONER HAS EXCLUSIVE ORIGINAL JURISDICTION OVER TIDSMATTER
The Court lacks subject matter jurisdiction over this dispute because the Commissioner
has exclusive original jurisdiction. "The authority and jurisdiction of the Commissioner of
Education are exclusive in all matters relating to the supervision and control of the public school
system ... and the authority and discretionary acts on the part of officers or agencies of
education." O'Connor v. Emerson, 196 A.D. 807,810, 188 N.Y.S. 236,238 (4th Dep't 1921)
(citations omitted). As the New York Court of Appeals has stated, the legislature may "confer
exclusive original jurisdiction upon an agency in connection with the administration of a
statutory regulatory program. In situations where the Legislature has made that choice, the
Supreme Court's power is limited to article 78 review, except where the applicability or
constitutionality of the regulatory statute, or other like questions, are in issue." Sohn v.
Calderon, 78 N.Y.2d 755, 767, 579 N.Y.S.2d 940,944-45 (1991) (citations omitted).
New York Education Law ("Education Law") vests the authority to approve co-locations
in the DOE: "all proposed ... significant changes in school utilization shall be approved by the
city board" pursuant to § 2590-g (N.Y. Educ, Law § 2590-h(2-a)(e», and "[t]he board shall have
the power and duty to: .. 1. (h) approve proposals for ... significant changes in school
utilization including the ... co-location of schools .... " (id. § 2590-g). Education Law vests the
Commissioner with the power to review the PEP's co-location decision: "the determination to
... co-locate a charter school within a public school building ... that has been approved by the
board of education ... may be appealed to the commissioner" pursuant to § 310 (id
§ 2853(3)(a-5», and "[a]ny party conceiving himself aggrieved may appeal by petition to the
commissioner of education" (id § 310). These provisions confer exclusive original jurisdiction
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upon the Commissioner to decide appeals from the PEP vote. See Capers v. Giuliani, 253
A.D.2d 630,632,677 N.Y.S.2d 353,355 (lst Dep't 1998) (a statute pursuant to which an
employee "may request an inspection" by notice to the Commissioner of Labor of a safety or
health standard violation confers exclusive original jurisdiction on the Department of Labor).
As the petitioners never brought an appeal to the Commissioner before initiating this
proceeding, the Court is without subject matter jurisdiction to hear this appeal. See Pocantico
Home & Land Co. v. Union Free Sch. Dist. of Tarry town, 20 A.D.3d 458, 462, 799 N.Y.S.2d
235,240 (2d Dep't 2005) (dismissing a school district boundary dispute on exclusive original
jurisdiction grounds, reasoning that "[b ]ecause the relief sought by the plaintiffs involved the
exercise of a statutory power expressly granted to the District Superintendent and, upon plenary
review, to the Commissioner, the road to judicial review in this case must pass first through the
office of the Commissioner"). The Court should accordingly dismiss this proceeding.
II. THE COURT SHOULD DISMISS THIS PROCEEDING FOR FAILURE TO EXHAUST
The petitioners were required to exhaust their administrative remedies by bringing this
appeal first to the Commissioner, but chose not to do so. "It is hornbook law that one who
objects to the act of an administrative agency must exhaust available administrative remedies
before being permitted to litigate in a courtoflaw." Watergate II Apts. v. Buffalo Sewer Auth.,
46 N.Y.2d 52,57,412 N.Y.S.2d 821, 824 (1978). Particularly where, as here, there is a new law
in the area of the agency's expertise, the "doctrine furthers the salutory goals of relieving the
courts ofthe burden of deciding questions entrusted to an agency, [and] preventing premature
judicial interference with the administrators' efforts to develop, even by some trial and error, a
co-ordinated, consistent and legally enforceable scheme of regulation .... " Id. (citations
omitted). Administrative agencies should be afforded the "opportunity, in advance of possible
judicial review, to prepare a record reflective of its 'expertise and judgment," and the role of the
court is limited to reviewing such record. Id. (citations omitted); see City Servs., Inc. v. Neiman,
77 A.D.3d 505, 508, 909 N.Y.S.2d 703, 706 (1st Dep't 2010) (denying petitioners' request for
hearing because administrative record did not include any issues requiring a hearing).
Because the petitioners brought this proceeding without exhausting their administrative
remedies, their petition should be dismissed.
A. Petitioners Failed to Exhaust Under CPLR Article 78's Explicit Exhaustion Requirement
1. Exhaustion Under CPLR Article 78
Article 78 of the CPLR explicitly sets out the exhaustion requirement. Section 7801 of
the CPLR states:
Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: 1. which is not final or can be adequately reviewed by appeal to a court or to some other body or officer ....
N.Y. C.P.L.R. § 7801 (emphasis supplied). Thus, so long as one can bring an appeal to an
administrative body, under Section 7801, one must do so before initiating an Article 78
proceeding in the courts. Id
Here, Section III(B)(2)(c) of Chancellor's Regulation A-190 expressly permits appeal to
the Commissioner concerning the PEP's approval of a co-location proposal.f It states:
Once a proposal to locate or co-locate a charter school within a public school building and its accompanying building usage plan have been approved by the PEP, the proposal and/or implementation of and compliance with the building usage plan may be appealed to the Commissioner of Education pursuant to
§ 2853(3)(a-5) of the New York Education Law.
Reg. A-190 (lII)(B)(2)(c) (emphasis supplied). The referenced Section 2853(3)(a-5) of New
York Education Law states:
Chancellor's Regulation A-190, § nc.
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[T]he determination to locate or co-locate a charter school within a public school
building that has been approved by the board of education of such city school
district may be appealed to the commissioner pursuant to section three
hundred ten of this chapter. ...
N.Y. Educ. Law § 2853(3)(a-5) (emphasis supplied). Section 310, referenced above, states:
Any party conceiving himself aggrieved may appeal by petition to the commissioner of education. . . . The petition may be made in consequence of any action: ... 7. [b]y any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.
Id § 310 (emphasis supplied). The applicable law expressly states in three separate provisions
locate Success Academy in the Brandeis Campus "can be adequately reviewed by appeal ... to
that an appeal to the Commissioner is available. Accordingly, because the DOE's decision to co-
some other body or officer," "a proceeding under this article shall not be used to challenge [the]
determination .... " See N.Y. C.P.L.R. § 7801 (emphasis supplied). Under the express language
of these statutory provisions, the petitioners were required to exhaust their administrative
remedies by bringing their petition first to the Commissioner for review-but failed to do so.
2. Appeal Is Required Before Resorting to Court
The fact that the education law provisions above state that parties "may appeal" to the
Commissioner (as opposed to other language, such as "shall appeal") does not alter the outcome.
Because Section 2853(3)(a-5) and Chancellor's Regulation A-190 are new provisions that went
into effect on May 28,2010 and October 7, 2010, respectively, there is no case law yet directly
addressing these particular provisions. See N.Y. Educ. Law § 2853(3)(a-5); Reg. A-190.
However, other administrative agencies have addressed the use of "may appeal" language in
similar contexts. See James v. Board of Educ. of City ofN Y, 42 N.Y.2d 357,366,397 N.Y.S.2d
934,941 (1977) ("the determinations of the Commissioner of Education are ... specifically
subject to review, pursuant to CPLR article 78, in the same fashion as those of other
administrative officers or bodies") (citations omitted).
In Elliott v. City of Binghamton, a case concerning an administrative denial of disability
benefits (affirmed by the Court of Appeals), the court considered how to construe the word
"may." 94 A.D.2d 887,888,889,463 N.Y.S.2d 554,556,557 (3d Dep't 1983), aff'd, 61 N.Y.2d
920,474 N.Y.S.2d 722 (1984). The issue in Elliott was whether a provision stating that "within
sixty (60) days after the mailing of .... notice, the applicant or his counsel may serve a written
demand on" the [City's] Commissioner [of Public Safety] for a hearing and redetermination" was
mandatory or permissive with respect to the 60-day time limit. 94 A.D.2d at 888, 463 N.Y.S.2d
at 556 (emphasis supplied). The court stated:
Whether a statute or regulation is framed in mandatory language is not necessarily of paramount importance in determining whether the provision in question is in fact mandatory or permissive. Rather, the considerations which control are the intent of the provision, gleaned from the entire regulation and the surrounding circumstances, the purpose of the provision, the policy to be promoted, and the results Which would obtain if one conclusion were followed to the exclusion of another.
Elliott, 94 A.D.2d at 889, 463 N.Y.S.2d at 557. In that case, the court found that the time limit
was mandatory, as "[t]he intent of the instant provision is clear. An applicant for statutory
benefits is free to seek a hearing and redetermination of his application following an initial denial
thereof. Accordingly, he 'may' serve a demand for such a hearing. However, if he intends to
pursue his claim following the initial denial, he must do so by filing the written demand within
60 days." Id. The Court of Appeals affirmed the Elliott decision "for reasons stated in the
memorandum of the Appellate Division." Elliottv. City of Binghamton, 61 N.Y.2d 920,922,
474 N.Y.S.2d 722, 722 (1984).
Likewise, here, the intent of the provisions expressly allowing appeal to the
Commissioner is clear. A party is not required to seek an appeal, but "may appeal" if he or she
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so chooses. See Reg. A-190 (III)(B)(2)(c); N.Y. Educ. Law §§ 2853(3)(a-5), 310. If he or she decides to appeal, it must first be. to the Commissioner. See id.; Elliott, 94 A.D.2d at 889, 463 N.Y.S.2d at 557. As in Elliott, "[t]o hold otherwise would require construing the word 'may' out of the context of the provision as a whole." 94 AD.2d at 889, 463 N.Y.S.2d at 557; see also Albano v. Kirby, 36 N.Y.2d 526, 530, 369 N.Y.S.2d 655,659 (1975) ("No rule of construction ... permits the segregation of a few words from their context and from all the rest of the section or rule for purposes of construction.") (citations omitted); Onteora Cent. Sch. Dist. v. Onteora Non-Teaching Emp. Ass 'n, 79 A.D.2d 415,417,438 N.Y.S.2d 386,388 (3d Dep't 1981) ("[I]t is a fundamental rule in interpreting statutes that the word 'may' should be construed as 'shall' or 'must' in cases where the sense of the entire enactment requires it or where it is necessary in order to carry out the intent of the Legislature.") (citations omitted).
The case law is replete with examples of courts' dismissal of Article 78 petitions for failure to exhaust when the applicable statutory provisions contained permissive language with respect to administrative appeals. See, e.g., Purr Feet World, Inc. v. City of Cortland, 57 A.D.3d 1254,1255,869 N.Y.S.2d 698, 700 (3d Dep't 2008) (affirming dismissal for failure to exhaust where a zoning ordinance stated that an aggrieved party may appeal that decision to the Zoning Board of Appeals); Podolsky v. Daniels, 21 A.D.3d 559,560,799 N.Y.S.2d 917,917-18 (2d Dep't 2005) (permissive terminology regarding appeal does not excuse failure to exhaust available remedy); Schiavone/Shea/Frontier-Kemper v. NYC DEP, 274 A.D.2d 586, 586-87, 712 N.Y.S.2d 393,394 (2d Dep't 2000) ("Although the administrative remedy available to the petitioner. .. is couched in permissive, rather than mandatory terms, that did not excuse the petitioner from exhausting the administrative remedies available to it.") (citations omitted). The
language here stating that the petitioners "may appeal" to the Commissioner is likewise
mandatory, requiring them to bring their petition first to the Commissioner.
Again, the common sense reading of the "may appeal't language is quite clear. No one is
required to appeal any administrative determination. However, if a party chooses to do so, it
"may appeal." If the party chooses not to appeal, it cannot then simply march into court and
thereby bypass the administrative appeals process.
3. Mulgrew Was Decided Before New Education Law Explicitly Requiring Exhaustion
Prior to last year's enactment of Section 2853(3)(a-5), petitioners in Mulgrew v. Board of
Education, were permitted to bring an Article 78 proceeding to directly challenge a vote of the
PEP to close andlor change the utilization of 19 city schools. 28 Misc. 3d 204,902 N.Y.S.2d
882 (Sup. Ct. N.Y. Co.), aff'd, 75 A.D.3d 412,906 N.Y.S.2d 9 (1st Dep't 2010). The Mulgrew
court did not address the issue of exhaustion, and, on appeal, neither did the Appellate Division.
landscape of the appeals process. See N.Y. Educ. Law § 2853(3)(a-5). Formerly, there had been
See id.; Mulgrew v. Board ofEduc. of City ofSch. Dist. of City of NY, 75 A.D.3d 412,906
N.Y.S.2d 9 (1st Dep't 2010). But the May 2010 enactment of Section 2853(3)(a-5) changed the
no express provision that permitted appeal to the Commissioner, although some parties did in
fact bring their petitions to the Commissioner.f The new Section 2853(3)(a-5) expressly
allowed such appeal to the Commissioner, thereby permanently foreclosing parties from
bypassing this step in the administrative appeals process-a conclusion compelled by a reading
26 2010 Sess. Law News of N.Y. Ch. 101 (A.lBlO) (McKinney) (comparison reflecting changes between old
and new law); Appeal of Battis, N.Y. Comm'r of Educ., Decision No. 16,115 (Aug. 2,2010) ("Battis"), available at http://www.counsel.nysed.gov/Decisions/volume50/d16115.htm (last visited Apr. 25, 2011).
- 17 -
of Section 7801 of the CPLR together with the new administrative appeals provisions, as
discussed above. See N.Y. Educ. Law 2853(3)(a-5); Reg. A-190(III)(B)(2)(c)_27
B. Petitioners Failed to Exhaust by Not Appealing Within the Allotted Time
The petitioners had 30 days after the PEP vote to bring their appeal to the Commissioner
but chose to allow this time to expire. Their failure to appeal within 30 days constitutes a failure
to exhaust, requiring dismissal ofthis proceeding.
"An appeal to the commissioner must be instituted within 30 days from the making ofthe
decision or the performance of the act complained of," though "[t]he commissioner, in hislher
sole discretion, may excuse a failure to commence an appeal within the time specified for good
cause shown." See 8 N.Y.C.R.R. § 275.l6. Here, the PEP vote that the petitioners seek to annul occurred on February 2,2011.28 The thirty-day period following the PEP vote expired on March
4, 2011. The petitioners never brought an appeal to the Commissioner, and instead instituted this
Article 78 proceeding on April 8,2011, over two months after the PEP vote.
A party who fails to appeal an administrative decision within the allotted time has failed
to exhaust all administrative remedies. Elliott, 94 A.D.2d at 889, 463 N.Y.S.2d at 557 (failure to
file written demand on the City's Commissioner of Public Safety for a hearing on a denial of
27 The doctrine of exhaustion allows for limited exceptions, none of which apply here: (1) "when an agency's
action is challenged as either unconstitutional or wholly beyond its grant of power," (2) "when resort to an administrative remedy would be futile," or (3) "when its pursuit would cause irreparable injury." Mirenberg v. Lynbrook Union Free Sch. Dist. Bd ofEduc., 63A.D.3d 943,943,881 N.Y.S.2d 159, 160 (2d Dep't2009)(citation omitted). In particular, where, as here, factual matters are in dispute (i.e., whether the factual information in the EIS and BUP is sufficient to satisfy the requirements of Sections 2590-h(2-a) and 2853(3)(a-3)(2), respectively, of New York Education Law), direct resort to the courts is inappropriate. See Levine v. Board ofEduc. of NY., 186 AD.2d 743,589 N.Y.S.2d 181 (2d Dep't 1992). Moreover, the fact that the petitioners' time to bring their appeal to the Commissioner has expired, as explained below, does not make resort to an administrative remedy "futile." An appeal is "futile" when the outcome is predetermined by the administrative agency through, for example, a longstanding policy on the issue in dispute, not when a party has failed to follow proper timing and procedures, thereby precluding his or her ability to appeal. Lehigh Portland Cement Co. v. NYS DEC, 87 N.Y.2d 136, 142-43,638 N.y'S.2d 388, 391-92 (1995). In any event, as discussed below, the Commissioner may excuse a tardy petition "for good cause shown." 8 N.Y.C.R.R. § 275.16.
See supra, n. 19.
- 18 -
disability benefits within required 60 day time limit constitutes failure to exhaust); Daniel v. NYS
DHCR, 179 Misc. 2d 452,458,683 N.Y.S.2d 404 (Sup. Ct. N.Y. Co. 1998) ("Since it is
undisputed that Mark and Lynn Katz filed their [petitions for administrative review] 37 days
after issuance of the Rent Administrator's order [2 days late], their article 78 proceeding must be
dismissed for failure to exhaust their administrative remedies.") (citation omitted). The
petitioners' untimely petition thus constitutes failure to exhaust as a matter of law.
The petitioners cannot avoid the 3D-day time limit by bringing a direct appeal to the
COurt.29 It cannot possibly be the rule that the petitioners may sit back and let the express 3D-day
time limit expire, and then demand that this Court review the determination for which an appeal
is now time-barred. The petitioners, of course, are free to request to the Commissioner that he
excuse their delay, presenting their reasons to the Commissioner for the dilatory appeal and the
impact of such delay on the Success Respondents and other interested persons. See 8
N.Y.C.R.R. § 275.16 ("The commissioner, in his/her sole discretion, may excuse a failure to
commence an appeal within the time specified for good cause shown."). The Commissioner
alone is empowered to excuse a tardy petition "in his/her sole discretion" for good cause. Id.
The petitioners should not be permitted to use the Article 78 proceeding as a self-help
mechanism to extend the deadline.
Moreover, allowing such a practice would effectively endorse improper forum shopping.
As discussed below, the petitioners seem to prefer an older (but inapplicable) pronouncement of
the Court to recent rulings by the Commissioner concerning the appropriate standard of review in
this case. See infra, § IV.A. To the extent that the petitioners permitted the Commissioner's 30-
29 An Article 78 proceeding may be instituted within four months after the determination to be reviewed becomes
final and binding. N.Y. C.P.L.R. § 217(1).
- 19 -
day time limit to expire in order to argue in this Court for their preferred standard of review, such
forum shopping should not be countenanced.
The petitioners' failure to bring any appeal to the Commissioner within the 30~day time
limit constitutes failure to exhaust, and the Court should dismiss this proceeding.
C. The Absence of an Exhaustion Requirement Would Defeat the Purpose of CPLR 2853(3)(a-5)'s Expedited Appeals Process for Co-location Disputes
As its legislative history reflects, the purpose of Section 2853(3)(a-5) of Education Law
permitting appeal to the Commissioner was to create an expedited appeals procedure for disputes
concerning the co-location of charter schools in a public school building. N.Y. Spons. Memo.,
2010 A.B. 11310 (Oct. 29, 2010) ("An expedited appeal may be made regarding the
determination to locate or co-locate a charter school in a public school building and the
implementation of and compliance with the building usage plan."). Under this procedure, after
an appeal to the Commissioner within the permitted 30 days, the DOE then has ten days to
respond, and the Commissioner, in tum, has ten days to make his final determination. N.Y.
Educ. Law § 2853(3)(a~5). If the petitioners were permitted to appeal directly to the Court, such
direct appeal would defeat the purpose of this provision of prompt resolution of co-location
disputes. See id; N.Y. Spons. Memo., 2010 A.B. 11310. Petitioners could bring their appeals
months later (as was the case here), and resolution of the dispute would surely stretch far beyond
the ten-day timeframe set forth in the statute. Had the legislature intended for it to be possible
for parties to appeal directly to the court, it would have imposed a timetable to encourage a
similarly expeditious resolution of co-location disputes in court. Permitting the petitioners to
make this direct appeal to the Court would defeat the purpose of the expedited appeals process
set forth in Section 2853(3)(a-5). The Court should accordingly dismiss this appeal.
- 20 ~
III. IN THE ALTERNATIVE, THE COURT SHOULD DISMISS THIS PROCEEDING UNDER THE DOCTRINE OF PRIMARY JURISDICTION
Even if exhaustion is not required, the Court should dismiss this proceeding under the
doctrine of primary jurisdiction. "The doctrine of primary jurisdiction' applies where a claim is
originally cognizable in the courts, and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative body .... " Langston ex rei. Langston v. Iroquois Cent.
Sch. Dist., 291 A.D.2d 845,845, 736 N.Y.S.2d 815,815-16 (4th Dep't 2002) (citation omitted).
The doctrine "coordinate [ s] the relationship between courts and administrative agencies so that
the agency's views on factual and technical issues are made available where the matter before
the court is within the agency's specialized field." Markow-Brown v. Board ofEduc. of Port
"[ e ]ven though a claim is cognizable in the judicial forum, if it involves a question within the
Jefferson Pub. Schs., 301 A.D.2d 653, 653-54, 754 N.Y.S.2d 326, 328 (2d Dep't 2003). Thus,
jurisdiction of an administrative agency and its determination depends upon the specialized
knowledge and experience of such agency, courts, under the doctrine of primary jurisdiction, will
refrain from exercising jurisdiction." Hessney v. Board of Educ. of Pub. Schs. of Tarry towns,
228 A.D.2d 954,955, 644 N.Y.S.2d 826 (3d Dep't 1996).
The Commissioner of Education has specialized expertise in matters concerning
education law. See Vetere v. Allen, 15 N.Y.2d 259, 265-66, 258 N.Y.S.2d 77, 78-79 (1965), cert.
denied, 382 U.S. 825 (1965); see also, e.g., Markow-Brown, 301 A.D.2d at 654, 754 N.Y.S.2d
328. Moreover, the Commissioner has developed a particular expertise in the area of the co-
location of charter schools in existing public schools under new charter school law (effective
May 2010), as he has ruled in this area several times since the enactment of the new provisions.
E.g., Appeal ofEspinet, Decision ofComm'r of Educ. No. 16,212, at 4 (Mar. 31, 2011)
- 21 -
("Espinet,,);3o Battis, at 1; see N.Y. Educ. Law §§ 2850-2857. The Court should thus decline the
petitioner's invitation to decide the instant matter, as it falls clearly within the specialized
expertise of the Commissioner. See Markow-Brown, 301 AD.2d at 654, 754 N.Y.S.2d at 328
(affirming dismissal because "the Commissioner of Education has the specialized knowledge and
expertise to resolve the factual issue of whether the petitioner's former full-time position and the
two new half-time positions are equal within the meaning of Education Law § 3013 (3)(a)");
Langston, 291 AD.2d at 845, 736 N.Y.S.2d at 816 (dismissing Article 78 petition regarding a
student's suspension from high school because "the claim depends upon 'the specialized
knowledge and experience' of the Commissioner of Education") (citation omitted); Hessney, 228
AD.2d at 955,644 N.Y.S.2d at 826 (affirming dismissal because "the Commissioner of
Education is uniquely suited to resolve this matter as he possess the specialized knowledge and
experience required to determine the factual issue of whether the duties of the subj ect teaching
positions are similar,,).31
IV. EVEN IF THE COURT WERE TO REACH THE MERITS, THE PETITION MUST FAIL, AS THE EDUCATIONAL IMPACT STATEMENT AND THE BUILDING USAGE PLAN COMPLY WITH STATUTORY REQUIREMENTS
In an appeal from a final administrative determination, the burden of proof is on the
petitioner to demonstrate a clear legal right to the relief requested, and the petitioner also bears
Available at http://www.counsel.nysed.gov/Decisions/volume50/d16212.htm (last visited Apr. 23, 2011).
31 See also Onteora Cent. Sch. Dist., 79 A.D.2d at 418,438 N.Y.S.2d at 389 (an education expenditure dispute is
"particularly within the province of the commissioner") (citation omitted); Board of Educ. v. Anderson, 140 Misc. 2d 1088, 1090-91, 532 N.Y.S.2d 330,331-32 (Sup. Ct. Westchester Co. 1988) ("[t]he responsibility for resolving the [public school] issues raised in this case lies with the Commissioner of Education, pursuant to Education Law
§ 310(7)"). Cases inwhich courts have retained jurisdiction involve situations where the petitioners' constitutional or statutory rights are implicated or where there are no questions of fact but only pure questions oflaw. See Lezette v. Board of Educ. of Hudson CitySch. Dist., 35 N.Y.2d272, 276-77, 360 N.Y.S.2d 869,871-73 (1974) (alleging violation of individual's statutory rights, and "[t]he essential facts are not in dispute"); Cohn v. Board of Educ. of Hammondsport, 58 AD.2d 977, 977, 397 N.Y.S.2d 255,256 (4th Dep't 1977) (alleging violations of an individual's statutory and constitutional rights). Constitutional and statutory rights are not at stake here, and, as the remainder of this brief reflects, an analysis on the merits requires a highly detailed factual review of whether the EIS andBUP contain information sufficient to satisfy statutory standards.
the burden of establishing the facts upon which he or she seeks relief. Bergstein v. Board 0/ Educ. a/Union Free Sch. Dist. # 1,34 N.Y.2d 318,323,357 N.Y.S.2d 465, 468-69 (1974); Jamaica Recycling Corp. v. City a/New York, 12 Misc. 3d 276,284-85,816 N.Y.S.2d 282,290 (Sup. Ct. N.Y. Co. 2006) (dismissing Article 78 proceeding for failure to carry evidentiary burden). The petitioners have failed to meet their burden.
A. The Proper Standard of Review is Substantial Compliance
The Commissioner has stated in no uncertain terms that "the appropriate standard of
review under Education Law §2590-h(2-a)," with respect to the notice and procedure requirements concerning an EIS, "is substantial compliance." Espinet, at 5; Battis, at 6; Appeal of Santos, Decision ofComm'r of Educ. No. 16,116,6 n.7 (Aug. 2, 2010) ("Santos,,).32 Yet the petitioners insist that the applicable standard of review is "strict compliance." Pets.' Mem. at 4. They seek to rely on an entirely separate regulatory scheme, New York's State Environmental Quality Review Act ("SEQRA"), to impose this strict compliance standard (and other SEQRA standards, including "hard look" and "reasoned elaboration" standards). Id. at 10. The petitioners then import an entire body of SEQRA case law into this analysis. E.g., id. at 10-11. In support of their efforts to apply SEQRA standards here, the petitioners cite to Mulgrew, in which the court had applied a SEQRA analysis and a "strict compliance" view. 28 Misc. 3d at 210,213,902 N.Y.S.2d at 887-88,889. However, Mulgrew was decided over one year ago when then-new Education Law 2590-h(2-a) had "not yet been interpreted .... " 28 Misc. 3d at 210,902 N.Y.S.2d at 887. The court noted that the language requiring the preparation of an EIS in the context of Education Law was similar to that used in SEQRA, and thus "the body of law governing SEQRA [was] instructive." Id.
Avail able at http://www.counsel.nysed.gov/Decisions/volume50/dI6116.htm (last visited Apr. 25, 2011).
~ 23 ~
On appeal, however, as the petitioners acknowledge, the First Department did not
endorse a strict compliance standard. Mulgrew v. Board of Educ., 75 A.D.3d 412,414,906
N.Y.S.2d 9,12 (1st Dep't 2010); see Pets.' Mem. at 4 n.l; Santos, at 6 n.7 (noting that the
appellate court "left open the question of the applicable standard of review under Education Law
§ 2590-h(2-a)"). In fact, the Appellate Division acknowledges that ''the statute does not specify
what information an EIS must include in analyzing the impact of a school closing or significant
change in school utilization on the affected students and community," and the "DOE is afforded
a 'considerable measure of discretion in this regard." Mulgrew, 75 A.D.3d at 414,906 N.Y.S.2d
The Commissioner's substantial compliance standard should apply here. The Court of
Appeals has explained that
[b]y our state system of education protected by the Constitution and developed by much study and experience, the commissioner of education is made the practical administrative head of the system, and in his exercise of sound wisdom, as we believe, the legislature deemed it best to make him the final authority in passing on many questions bound to arise in the administration of the school system ....
Vetere, 15 N.Y.2d at 265-66,258 N.Y.S.2d at 78-79. As the lower Mulgrew court itself stated,
its reliance on SEQRA analysis was solely because there were no cases yet interpreting 2590-
h(2-a) at the time. 28 Misc. 3d at 210,902 N.Y.S.2d at 887-88. The Commissioner had not yet
had the opportunity to address the issue. See id The Commissioner has since ruled on the issue
several times and has each time stated unequivocally that the applicable standard is substantial
A refusal to accept the Commissioner's standard here is inappropriate for two reasons.
compliance. E.g., Espinet, at 5; Battis, at 6; Santos, at 6 n.7.
First, the Court would be imposing on the Commissioner not only a standard based on SEQRA,
an unrelated environmental law and its implementing regulations, but also a vast body of case
law interpreting the specific and unique circumstances concerning compliance with SEQRA's requirements. In other words, the Court would be improperly stripping the Commissioner of his broad discretionary authority as head of an administrative agency to "develop ... a co-ordinated, consistent and legally enforceable scheme of regulation .... " See Watergate II Apts., 46 N.Y2d at 57, 412 N.Y.S.2d at 824 (citation omitted). This would undermine the delegation of authority to the Commissioner to serve generally as the "final authority" on matters concerning New York's public education system. See Vetere, 15 N.Y.2d at 265-66,258 N.Y.S.2d at 78-79. It is respectfully urged that the Court should not substitute its own judgment for that ofthe Commissioner in these matters, particularly as they relate to a detailed review of specialized charter school issues, namely, the co-location plans of a charter school in a public school building. See James v. Board ofEduc., 42 N.Y.2d at 367,397 N.Y.S.2d at 942 ("The courts may not ... assume the exercise of educational policy vested by constitution and statute in school administrative agencies. "); Vetere, 15 N. Y.2d at 265-66, 258 N. Y.S.2d at 78-79 ("The purpose of the grant of quasi-judicial powers under section 310 of the Education Law. . .. is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same as far as practicable and possible from controversies in the courts.") (citation omitted).
Second, the obvious implication of applying a strict compliance standard is that it would establish inconsistency in the law. If an appeal had been timely taken, the Commissioner would have applied a substantial compliance standard. If petitioners were permitted in this Court to avoid bringing their appeal first to the Commissioner and then were permitted to utilize a stricter standard than the Commissioner would impose, that would create an inconsistency in the law. "Reason and common sense dictate that a single authority make these decisions so that a
- 25 -
consistent standard may be developed .... " Onteora Cent. Sch. Dist., 79 A.D.2d at 418, 438
N.Y.S.2d at 388-89 (citation omitted).
Accordingly, the Court should apply a substantial compliance standard in analyzing the
EIS and the BUP.
B. The DOE Properly Determined that the Brandeis Campus Was UnderUtilized
The petitioners refer to a DOE document entitled "Under-utilized Space Memorandum,"
dated October 6, 2010 (the "Space Memorandum") and argue that the DOE failed to comply with
its requirements and "guarantees," thus requiring annulment of the PEP vote. Pets.' Mem. at 5-7,
Verified Pet., Ex. 1. However, the petitioners have provided no basis for construing the Space
Memorandum as a mandatory document. A review of the language in the document makes clear
that it was not intended to be binding law, as it uses terms such as "preliminarily determined"
and "guidelines." Guidelines are not mandatory. See Soldano v. Bayport-Blue Point Union Free
Sch. Dist., 294 A.D.3d 891, 891, 815 N.Y.S.2d 712, 713 (2d Dep't 2006) (differentiating
"mandatory" standards from "suggested guidelines"). Additionally, the petitioners have not
cited any law that requires annulment of the PEP vote based on a purported departure from the
guidelines set forth in the Space Memorandum; indeed, no such law exists.
In any event, a calculation of the maximum total projected number of students enrolled in
the Co-located High Schools reflects that the Brandeis Campus was properly listed in the Space
Memorandum. The target capacity of the Brandeis Campus is 2,148 students. Verified Pet., Ex.
1, at 3. Although the current capacity in the Space Memorandum is listed as 1,885 students in
the Space Memorandum, the DOE has listed the actual total current enrollment number at 1,353
students for the current 2010-11 school year (space available for 795 students (2,148 minus
. 1,353). Id., Ex. 1 at 3; Ex. 3 (EIS), at 3. The petitioners argue that the DOE's enrollment figure
incorrectly reflected enrollment at the Louis D. Brandeis High School for 2010-11 by 212 fewer students than are actually enrolled. Verified Pet. ~~ 88-89 (DOE's figure is 609; the petitioners' figure is 821). Even assuming, arguendo, that the petitioners are correct, there is still space available for 583 (795 minus 212)students this current school year, rendering the purportedly incorrect enrollment number immaterial. Moreover, the Louis D. Brandeis High School is in the process of phasing out of the Brandeis Campus, while the other Co-Located High Schools are phasing in. Id., Ex. 3 (ElS), at 3. Even with these changes-and the additional phase-in of Success Academy-based on maximum student enrollment projections over the next five years, the Brandeis Campus will remain below its target capacity of 2, 148 students. Id.
With respect to the petitioners' statements that the ''the SLTs [School Leadership Teams] rejected the notion that the Brandeis Campus was under-utilized" and that the "DOE rejected the SLT feedback"-the petitioners point to no authority that requires the DOE to accept any "feedback" that a building it has designated as underutilized should not be so designated. Pets.' Mem. at 7. Even the non-binding Space Memorandum the petitioners reference does not require it. See Verified Pet., Ex. 1, at 2.
The petitioners' also claim that the Space Memorandum "guaranteed" a site visit by the Division of School Facilities, but no such "guarantee" is made. Id. Even if it were, the Space Memorandum is non-binding. See Soldano, 294 A.D.3d at 891,815 N.Y.S.2d at 713.
C. The EIS and the BUP Comply with Statutory Requirements
The petitioners have raised a litany of purported violations. For the Court's convenience, the following chart lays out (1) a summary ofthe petitioners' arguments, (2) the provisions purportedly violated, and (3) an explanation of why no violation has occurred. As described above, the standard of review is substantial compliance, and that standard was met. Espinet, at 5.
Petitioners' Arguments Provisions Purnortedly Why No Violation
"[T]he EIS falsely reported the § 2590-h(2-a)(b )(i), Even if the 609 figure is incorrect, the
projected 2010-2011 requiring "the current and total projected number of students to be
enrollment figures for students projected pupil enrollment enrolled at Success Academy and the Co-
at Brandeis High School as of the affected school" Located High Schools in the Brandeis
609 instead of over 800." Campus over the next five years will still
Pets.' Mem. at 11. be below the target capacity of the
Brandeis Campus of 2,148 students, even
allowing for the petitioners' figure of
"over 800," as discussed above. Verified
Pet., Ex. 1, at 3; Ex. 3, at 3.
"The EIS does not assess the § 2590-h(2-a)(b)(i) and The EIS provides extensive description of
monitoring that would be (ii), Reg. A-190(II)A)(f), the impact of the proposed co-location on
needed to ensure safety for all requiring "the the students, school, and community.
students in space shared by ramifications of such Verified Pet., Ex. 3, at 3-6. The DOE
high school students of up to school closing or stated that it "would allocate contiguous
20 years of age and elementary significant change in and dedicated spa~e to SACS to ensure
students as young as five school utilization upon the the safety of all students." Id. at 4. This
years, nor does it address the community" and the statement makes sufficiently clear that the
unreasonable supervision and impact of the proposal on elementary-aged student population will
logistical demands on affected students be segregated from the older students to
educators and administrators, ensure the safety of all. The additional
as well as on security staff in level of day-to-day detail the petitioners
the building with metal demand relating to the logistics of
detectors. The EIS is also supervision, metal detectors, hallway
devoid of details addressing flow, "and the like" is neither required by
such issues as fire the law nor practical to detail in the
emergencies, hallway flow, proposal. See Battis, at 5; see also Reg.
and the like. . . . The Brandeis A-190, Attachment No. IB (sample EIS),
EIS includes no explanation of Attachment No.2 (sample BUP). Many
how the high schools and its of the classrooms Success Academy
students utilize the classrooms anticipates it will be using are not in
that DOE will rip from active use as student classrooms.
them .... " Pets.' Mem. at 11- Borowick Aff. ~ 21 and Exs. A-O.
"[T[he EIS omitted to report § 2590-h(2-a)(b )(v), The EIS explains that "[t]he DOE already
the recent $17.5 million requiring "recent or has a restructuring plan in place to convert
investment in building planned improvements" the M4770 building from a single school
improvements. . .. The DOE to an Educational Campus. A portion of
does not ... describe the type this budget would be applied towards
of restructuring being done at renovations to create a separate eating
M470 or the cost ofthe area for elementary students, and
restructuring. " Pets.' Mem. at otherwise accommodate a fifth school in
13. the building, . . . Planned construction
projects to take place at the Brandeis
Campus are described in the attached
BUP." It also states that "[a]t present, the
DOE is engaged in restructuring the M470
facility to accommodate multiple school
organizations. Facilities needs for SACS - 28-
would be completed as part of this
restructuring." The EIS also discusses
cost and related issues. Verified Pet., Ex.
3, at 13, 14. This language sufficiently
encapsulates "recent or planned
BUP: "The rules of space § 2853(3)(a-3)(2)(C), The petitioners' complaints concerning
allocation for elementary requiring a 'Justification the DOE's underlying policies concerning
schools are different than, and ofthe feasibility of the space allocation does not amount to a
preferential to, those for high proposed allocations . . . violation in the BUP. Any purported
schools. . . . As a result of and how such proposed "preferential" space allocation for
these disparate allocation rules, allocations and shared elementary school students in general, if
SACS students automatically usage would result in an any, is not unique to this proposed co-
will receive a disproportionate equitable and comparable location but would apply to all space
share of space than existing use of such public school allocations for elementary schools versus
Brandeis Campus high school building." high schools in New York City, and is
students." Pets.' Mem. at 15- thus not inequitable.
16 (emphasis omitted).
"[T]he Brandeis EIS and BUP § 2853(3)(a-3)(2)(B) and The BUP provides a proposal for the
propose to renovate 'four Reg. A-190 § collaborative usage of two cafeterias, and
rooms adjacent to the current I1(A)(2)(a)(ii)(b ), the petitioners do not allege that they
cafeteria' to build an additional requiring "a proposal for receive an inadequate allocation of
cafeteria in the Brandeis the collaborative usage of cafeteria time. Verified Pet., Ex. 4, at
Campus for the exclus ive use shared resources and 9-10. The law does not require any more.
of the SACS students." Pets.' spaces between the charter
Mem. at 16 (emphasis school and the non-charter
omitted). schools, including but not
limited to, cafeterias ... "
"Although the PEP Notice was § 2590-g(8)(a)(iv) and The date was included in the amended
issued timely, it was defective Reg. A-190 § II(C)(2)(d), notice dated December 22,2010. Verified
in that it ... omitted the date requiring that notice of the Pet., Ex. 7, at 2. Lead petitioner Lisa
of the Joint Hearing." Pets.' proposed item under PEP Steglich was present at the joint public
Mem. at 18. consideration to include hearing and provided public comment on
"date, time and place of January 25, 2011. Verified Pet., Ex. 8, at
any hearing" 2,4-5. Approximately 371 members of
the public attended the joint public
hearing, and approximately 112 spoke.
Id. at 2 None of the petitioners claim that
they did not receive actual notice of the
joint hearing date. Accordingly, there was
no notice violation. See Battis, at 7 (no
notice violation where no indication that
the petitioners were unaware of the
hearings or were denied an opportunity to
"Although the PEP Amended Mayor's Executive Order Even if the Mayor's Executive Order
Notice was published in both No. 120 § 2.d.i; DOE applied to the DOE (which is far from
English and Spanish, the Language Access Plan; clear), it merely orders each city agency to
Amended Notice was not Reg. A-663 §§ III(B), complete a language access policy and
issued until December 22, V(A) implementation plan, and, as part of that - 29-
2010 - less than the required plan, the city agencies must translate
forty-five days prior to the essential public documents. The DOE has
February 1,2011 PEP completed a plan (Reg. A-663). Under
meeting." Pets.' Mem. at 18. Reg. A-663 § III(B), the DOE is
permitted, but not required, to "provide
translation ... services beyond those
outlined in this regulation." Reg. A-663 §
YeA) discusses the translation
requirements for centrally produced
critical communications. Section V(A)(2)
provides that the critical communications
need only be translated in a "timely
manner." The DOE promulgated the
amended PEP notice in Spanish five days
after the initial PEP notice in English was
published. No violation occurred.
The DOE should have City Environmental Success Academy will not be providing
prepared an Environmental Quality Review Act 1 State yellow bus service. Sedlis Aff. (4/25/11)
Impact Statement because, (1) Environmental Quality 'if 7. All of the 184 students who have
"given the likelihood of greater Review Act, been accepted to Success Academy reside
geographic diversity among Environmental in School District 3. Sedlis Aff. (4/19111)
SACS students than PS 9 Conservation Law, 'if 14. Moreover, the conclusory statement
students," Success Academy Article 8 that Success Academy students will use
students will use yellow buses, more taxis and private automobiles than
(2) Success Academy students high school students is entirely
will use more taxis or private speculative and unsupported by any
automobiles than high school evidence. The petitioners' PCB statement
students, who usually use mass is equally unsupported and speculative.
transit, and (3) building Such speculative statements cannot
materials in the "Brandeis possibly serve as the basis for annulling
Campus may contain the PEP vote.
("PCBs") and other hazardous
substances" that will be
disturbed by planned
construction. Pets.' Mem. at
19-20. Accordingly, the EIS and BUP comply with all statutory requirements, and the
petitioners' appeal must be dismissed.
For all of the foregoing reasons, the Success Respondents respectfully urge that the Court
grant their motion to dismiss the petition in this Article 78 proceeding andlor deny all of the
relief sought by the petitioners.
Dated: April 25, 2011 New York, New York
~ 31 -
Emily A. Kim
399 Park Avenue
New York, New York 10022 (212) 715-1000
Attorneys for Proposed IntervenorRespondents
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