Opinion
No. 1596 C.D. 2014
05-14-2015
Bensalem Township School District, Petitioner v. Bensalem Keystone Academy Charter School, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is a petition for review filed by Bensalem Township School District (School District) appealing an order of the State Charter School Appeal Board (Board) that reversed the School District's denial of the revised charter school application of Bensalem Keystone Academy Charter School (Keystone) and ordered the School District to issue a charter to Keystone under the Charter School Law. For the reasons set forth below, we affirm.
Act of June 19, 1997, P.L. 225, as amended, 24 P.S. §§ 17-1701-A - 17-1751-A.
On November 12, 2010, Keystone submitted a charter school application to the School District. Following two public hearings on the application and a written response from Keystone to questions raised by the School District, the School District denied the application on February 23, 2011. As permitted by Section 1717-A(f) of the Charter School Law, Keystone submitted a revised charter application on June 20, 2011. This application sought a charter for a K-12 school, offering grades K-8 in its first year and adding grades 9, 10, 11 and 12 in the second, third, fourth and fifth years of its charter, respectively. (Revised Charter Application, Reproduced Record (R.R.) at 337a-338a.) The school is to have 40 students per grade, with a class size of 18-22 students, and a total enrollment growing from 360 in its first year to 520 in its fifth year. (Id., R.R. at 290a, 337a-338a; Board Opinion Findings of Fact (F.F.) ¶¶6-7, and Discussion at 11.)
Keystone's proposed curriculum is the International Baccalaureate (IB) program, which has a primary years program and a middle years program, in addition to its high school diploma program. (Board Opinion F.F. ¶¶10-12; Revised Charter Application, R.R. at 286a-306a.) Qualification as an IB World School requires a several year process of training and certification from the IB organization, but the curriculum may be used by a school upon registration with the IB organization, before completion of that certification process. (12/15/10 Hearing Transcript (H.T.) at 14-15, 33-36, 93, 104-05, R.R. at 1025a-1026a, 1044a-1047a, 1104a, 1115a-1116a; 2/2/11 H.T. at 210-14, R.R. at 1348a-1352a; Revised Charter Application, R.R. at 289a, 294a.) Keystone has retained an education consultant to work on the planning and development of the school. (Revised Charter Application, R.R. at 342a.) Keystone's education consultant has 17 years of experience as a school superintendent and 10 years of experience in developing and starting up charter schools, including working with a charter school in Bethlehem, Pennsylvania in its qualification as an IB accredited school. (Board Opinion F.F. ¶¶16-17; 12/15/10 H.T. at 14, 39-41, 81, 98-100, 106, R.R. at 1025a, 1050a-1052a, 1092a, 1109a-1111a, 1117a; 2/2/11 H.T. at 216, 219-31, R.R. at 1354a, 1357a-1369a.)
Keystone submitted with its revised charter application pre-enrollment forms from parents of 249 students in the School District and over 40 pre-enrollment forms for students outside the School District. (Board Opinion F.F. ¶8; Revised Charter Application, R.R. at 560a-854a.) Keystone also submitted petitions of support signed by over 110 residents of the School District. (Board Opinion F.F. ¶9; Revised Charter Application, R.R. at 532a-558a; 12/15/10 H.T. Ex. BT-4, R.R. at 1212a-1222a.) Thirteen individuals, including parents and two former teachers, appeared in favor of the school at the second hearing on Keystone's initial application. (2/2/11 H.T. at 152-76, R.R. at 1290a-1314a.) Keystone's charter application contained an assertion that the school had letters of support from elected officials and a reference to a non-existent Bensalem parents organization, and Keystone acknowledged that these items were inaccurate and should not be considered as evidence of support for the school. (Revised Charter Application, R.R. at 287a, 340a; 12/15/10 H.T. at 56-57, 91-92, R.R. at 1067a-1068a, 1102a-1103a; 2/2/11 H.T. at 183-87, R.R. at 1321a-1325a; 2/2/11 H.T. Exs. BT-6, BT-7, R.R. at 1474a, 1481a.) The revised charter application identified a proposed site for the school, and Keystone supplied documents setting forth proposed lease terms and drawings of the site and the proposed layout of classrooms and offices. (Revised Charter Application, R.R. at 351a, 864a-877a.)
Following a public hearing on the revised charter application on August 3, 2011 and a written response from Keystone to questions raised by the School District, the School District denied the revised charter application on a number of grounds, including failure to demonstrate sustainable support, failure to demonstrate that Keystone was capable of implementing the IB program that it proposed as its curriculum, failure to demonstrate how Keystone would serve as a model for other public schools, and unsuitability of its proposed site for the school. (8/24/11 School District Resolution at 3-9 & F.F. ¶¶1-5, 7-24.) Keystone, in accordance with Section 1717-A(i) of the Charter School Law, obtained the required petition signatures for appeal and court of common pleas approval of the sufficiency of its petition, and in October 2012, appealed the denial of its revised charter application to the Board.
The School District also denied the charter for alleged budget deficiencies and argued that ground before the Board, but did not raise that issue in its brief in this Court.
While Keystone's appeal was pending before the Board, the proposed site for the school was sold and became unavailable. Keystone identified a building at 3190 Tremont Avenue, Trevose, as its new proposed facility and submitted to the Board a letter of intent to lease space for the school in that building. (Keystone Answer to School District Motion to Dismiss Appeal ¶8 & Ex. A thereto, R.R. at 75a, 80a-82a.) That location is zoned Light Industrial and the Bensalem Township Zoning Ordinance does not permit operation of a school on that lot. (5/3/12 Zoning Hearing Board (ZHB) Decision, R.R. at 64a-69a.) Another charter school sought a use variance in 2012 to operate a high school in the same building starting at 100 students and growing to 400 students over four years. (Id., R.R. at 64a-66a.) The ZHB denied the use variance on the ground that the school would cause congestion in the nearby residential neighborhood and the school had failed to demonstrate unnecessary hardship because the property owner could enjoy reasonable use of the property without the variance. (Id., R.R. at 64a- 69a.) The ZHB in 2010 also denied a variance for use of the same property as an adult day care center. (11/29/10 ZHB Decision, R.R. at 70a.) The School District moved to dismiss Keystone's appeal on the ground that Keystone had not identified a suitable facility, arguing that the applicable zoning ordinance did not permit the substitute site proposed by Keystone to be used for a school.
On April 29, 2014, the Board voted to deny the School District's motion to dismiss. The Board voted unanimously on July 29, 2014, to grant Keystone's appeal, and on August 28, 2014, issued its opinion and order setting forth findings of fact and conclusions of law rejecting the deficiencies found by the School District and directing the School District to issue a charter to Keystone. The School District timely appealed that decision to this Court.
This Court's review of the Board's decision is limited to determining whether constitutional rights were violated, whether errors of law were committed or whether the decision is not supported by substantial evidence. Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 403 n.1 (Pa. Cmwlth. 2003). --------
Section 1717-A(e)(2) of the Charter School Law provides that:
A charter school application submitted under this article shall be evaluated by the local board of school directors based on criteria including, but not limited to, the following:
(i) The demonstrated, sustainable support for the charter school plan by teachers, parents, other community members and students, including comments received at the public hearing held under subsection (d).
(ii) The capability of the charter school applicant, in terms of support and planning, to provide comprehensive learning experiences to students pursuant to the adopted charter.
(iii) The extent to which the application considers the information requested in section 1719-A and conforms to the legislative intent outlined in section 1702-A.
(iv) The extent to which the charter school may serve as a model for other public schools.24 P.S. § 17-1717-A(e)(2) (emphasis added). Section 1719-A requires that a charter school application include 17 items of information, including a "description of and address of the physical facility in which the charter school will be located and the ownership thereof and any lease arrangements." 24 P.S. § 17-1719-A (11). The Board reviews the record de novo and makes its own independent determination of whether the charter school has satisfied the requirements of Sections 1717-A and 1719-A. West Chester Area School District v. Collegium Charter School, 812 A.2d 1172, 1180 (Pa. 2002); Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 403-04 (Pa. Cmwlth. 2003).
The School District argues that the Board erred in finding that Keystone demonstrated sustainable support for the school and the capability of providing comprehensive learning experiences to students. Contrary to the School District's contentions, the Board made no legal error in its evaluation of these requirements and its findings are supported by the record.
To meet the requirement of "sustainable support for the charter school plan by teachers, parents, other community members and students," 24 P.S. § 17-1717-A(e)(2)(i), a charter school need only show reasonably sufficient support from those groups in the aggregate, not a minimum level of support from each of the listed groups. Montour School District v. Propel Charter School-Montour, 889 A.2d 682, 687 (Pa. Cmwlth. 2006); McKeesport Area School District v. Propel Charter School McKeesport, 888 A.2d 912, 916 (Pa. Cmwlth. 2005); Central Dauphin School District v. Founding Coalition of Infinity Charter School, 847 A.2d 195, 200 (Pa. Cmwlth. 2004) (en banc); Fell Charter School, 829 A.2d at 405-06; Brackbill v. Ron Brown Charter School, 777 A.2d 131, 138 (Pa. Cmwlth. 2001). Pre-enrollments are strong evidence of sustainable support. Propel Charter School-Montour, 889 A.2d at 687; Propel Charter School McKeesport, 888 A.2d at 917; Fell Charter School, 829 A.2d at 405-06. Sustainable support may also be shown by signed petitions of support. Brackbill, 777 A.2d at 137; see also Propel Charter School-Montour, 889 A.2d at 684, 687.
The Board's findings of pre-enrollment forms for 249 students in the School District and over 110 petition signatures of School District residents are supported by the record. (Revised Charter Application, R.R. at 532a-558a, 560a-854a; 12/15/10 H.T. Ex. BT-4, R.R. at 1212a-1222a.) These findings are sufficient to satisfy the requirement of sustainable support. Propel Charter School-Montour, 889 A.2d at 684, 687 (196 pre-enrollment applications for school with projected initial enrollment of 300 demonstrated sustainable support); Propel Charter School McKeesport, 888 A.2d at 917 (upholding Board conclusion that a showing of 168 pre-enrollment applications was the best evidence of sustainable support and demonstrated the level of support in the aggregate required by the Charter School Law); Fell Charter School, 829 A.2d at 405-06 (126 pre-enrollment applications for charter school with projected initial enrollment of over 200 students demonstrated sustainable support).
The School District does not dispute the existence of this evidence or the correctness of the legal standards applied by the Board. Rather, the School District argues only that Keystone allegedly made misrepresentations concerning its community support. This contention does not affect the validity of the Board's findings or decision. None of the inaccuracies raised by the School District relate to the pre-enrollments or petition signatures on which the Board relied or show lack of community support. Only one misstatement, the assertion that Keystone had letters from elected officials, involved a claim of support at all, and Keystone corrected that statement. (12/15/10 H.T. at 91-92, R.R. at 1102a-1103a; 2/2/11 H.T. at 184-87, R.R. at 1322a-1325a.) The reference to a nonexistent parent group occurred in a context of a general discussion of the value of the IB program, and did not claim that group as a supporter of Keystone or its application. (Revised Charter Application, R.R. at 287a.) The only other alleged misrepresentations claimed by the School District concern where and how many community meetings were held and how many people attended those meetings. The Board's finding of sustainable support was not based on support from elected officials, the representations concerning the parent group or the existence of or attendance at community meetings.
The Board's determination that Keystone is capable of implementing the IB program and is therefore capable of providing comprehensive learning experiences to students is likewise supported by the record. The revised application contains substantial detail on the IB curriculum that Keystone will use. (Revised Charter Application, R.R. at 286a-306a.) The record shows awareness and understanding by Keystone of the IB certification process and the staffing and professional development that the curriculum and certification will require. (12/15/10 H.T. at 14-15, 33-36, 104-05, R.R. at 1025a-1026a, 1044a-1047a, 1115a-1116a; 2/2/11 H.T. at 210-14, R.R. at 1348a-1352a; Revised Charter Application, R.R. at 289a, 294a.) The record also contains substantial evidence that Keystone's retained education consultant has experience in the development and start-up of charter schools and knowledge concerning the IB program and its certification process and requirements. (12/15/10 H.T. at 14, 39-41, 81, 98-100, 106, R.R. at 1025a, 1050a-1052a, 1092a, 1109a-1111a, 1117a; 2/2/11 H.T. at 216, 219-31, R.R. at 1354a, 1357a-1369a; Revised Charter Application, R.R. at 342a.) The fact that the IB certification process takes a period of years does not prevent Keystone from providing comprehensive learning experiences to students in the interim because the record showed that Keystone would be able to use the IB curriculum from the time it opened, even though the certification as an IB World School and the ability to grant the IB diploma would not be obtained until later. (12/15/10 H.T. at 33, 104, R.R. at 1044a, 1115a; 2/2/11 H.T. at 211-12, R.R. at 1349a-1350a.)
There is no evidence in the record suggesting that Keystone lacks the ability to implement the IB curriculum or comply with and satisfy the IB certification requirements. The School District presented no evidence of any deficiency in the experience or capability of Keystone's educational consultant. The School District's arguments that the Bethlehem charter school with which he worked in its IB certification was not originally an IB school and that Keystone had not begun its application to the IB organization do not undermine the Board's findings or conclusions. The School District's evidence did not refute that Keystone's educational consultant worked with the Bethlehem charter school on its IB certification and, indeed, confirmed that the school successfully became certified as an IB World School for all grades. (2/2/11 H.T. at 227, R.R. at 1365a.) The fact that Keystone had not begun its IB application before it was granted a charter did not show that it could not comply with IB requirements and implement the IB curriculum, given the ample evidence that it understood what it would have to do to meet those requirements and implement the curriculum. The Board's statement that it "cautions that the IB program is rigorous and difficult to implement; so the District should monitor the charter school's status as an IB school as this is a crucial component of the charter school" (Board Opinion at 9 n.1) does not show any error in its determination. That statement goes only to the School District's right to hold Keystone to its charter with respect to obtaining IB certification, not to Keystone's ability to educate students using the IB curriculum and other curricular provisions set forth in its charter application or its capability of obtaining IB certification.
The School District's contention that the Board erred in denying its motion to supplement the record on this issue is also without merit. The Board is not required to allow a party to introduce additional evidence. 24 P.S. § 17-1717-A(i)(6); Shenango Valley Regional Charter School v. Hermitage School District, 756 A.2d 1191, 1194 (Pa. Cmwlth. 2000). The only additional evidence that the School District sought to introduce concerned another School District charter school's charter amendment and implementation of the IB program. The School District's denial of Keystone's charter application was not based on the availability of the IB program at another school in the School District. Issues not raised by a school district in its denial of a charter application are waived and cannot be raised on appeal as a ground for denying the charter. Infinity Charter School, 847 A.2d at 203 n.8. Moreover, the existence of a similar program in another school in the school district would not preclude a finding that the charter school's program is innovative and can serve as a model for other public schools. Id. at 204-05. Nothing that the School District sought to add to the record related to Keystone or the background or capabilities of Keystone's educational consultant. Nor did the School District provide any new evidence concerning the requirements of the IB program. Rather, the proposed evidence showed only the actions taken by another charter school already in existence in seeking IB certification. (R.R. at 1804a- 1842a.) The fact that a charter school already in existence has taken further steps toward IB certification does not show anything concerning Keystone's ability to implement the IB curriculum or obtain IB certification.
The School District also argues that the Board erred in ordering the School District to issue a charter where Keystone's proposed site is in a zoning district that does not allow schools as a permitted use and a use variance sought by another charter school for that property has recently been denied. While we agree that the zoning here raises a serious issue that will require Keystone to either succeed in obtaining a variance or obtain amendment of its charter before it can open its school, we do not agree that this uncertainty concerning zoning compatibility precludes the granting of a charter.
Section 1722-A(a) of the Charter School Law provides that "[a] charter school may be located in an existing public school building, in a part of an existing public school building, in space provided on a privately owned site, in a public building or in any other suitable location." 24 P.S. § 17-1722-A(a) (emphasis added). The purpose of Section 1719-A(11)'s requirement that the charter applicant submit a "description of and address of the physical facility in which the charter school will be located and the ownership thereof and any lease arrangements" is to enable the school district and the Board to determine whether the proposed facility is suitable and adequate for the school's needs. Infinity Charter School, 847 A.2d at 202; see also Souderton Area School District v. Souderton Charter School Collaborative, 764 A.2d 688, 698 (Pa. Cmwlth. 2000) (substitute school site must be submitted to school district so that school district can "consider whether the facility is appropriate").
A charter application cannot be granted where the proposed school facility is not available. Propel Charter School-Montour, 889 A.2d at 688-90 (vacating order granting charter and remanding for determination of suitability of new proposed site where facility in application became unavailable). A suitable, available facility "must be presented for the District or [State Charter School Appeal Board] to approve prior to the school opening, and before the application is granted." Id. at 690. The possibility that the proposed site will be unavailable, however, is not a ground for denying a charter application. Souderton Charter School Collaborative, 764 A.2d at 696-98. Moreover, a charter applicant is not required to have all permits or have completed all steps necessary to occupy the property and operate a school on it before the charter is granted. See Fell Charter School, 829 A.2d at 408 (affirming charter approval where charter school acknowledged improvements were needed to satisfy building codes prior to opening the school); Brackbill, 777 A.2d at 139 (charter applicant is not required to have the school site under contract).
The zoning of Keystone's proposed site and the past denial of similar variance applications raise a very substantial possibility that the site will be unsuitable and unavailable. Because Keystone is not precluded from seeking and obtaining a variance that would permit use of the site for its school, however, that unavailability remains a possibility, not a certainty, and therefore does not bar the grant of a charter. This uncertainty will have to be resolved before Keystone may proceed to open and operate its school. Keystone will not be able to open its school under its charter unless and until it obtains a variance permitting it to use the site for its school. If it fails to obtain the variance, Keystone will not only have to locate a different, suitable facility, but it will also have to submit that site to the School District and obtain approval of a charter amendment changing its location before it can open its school. Souderton Charter School Collaborative, 764 A.2d at 697-98 (if site in charter is unavailable, charter school "would have to submit a new application to the District Board and afford the District Board an opportunity to consider whether the facility is appropriate under the [Charter School Law]").
For the foregoing reasons, we affirm the decision of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge Judge Cohn Jubelirer and Judge Covey did not participate in the decision of this case. ORDER
AND NOW, this 14th day of May, 2015, the order of the State Charter School Appeal Board dated August 28, 2014 in the above-captioned matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge