N.Y. Comp. Codes R. & Regs. tit. 8 § 276.11

Current through Register Vol. 46, No. 43, October 23, 2024

Section 276.11 - Procedures in a charter school location/co-location appeals pursuant to Education Law Section 2853(3)

(a)Definitions.

As used in this section:

(1)Board of education means the panel for educational policy of the city school district of the City of New York.

(2)Day means business day.

(b)Applicability.

(1) The procedures set forth in this section shall apply to:

(i) appeals pursuant to Education Law section 2853(3)(a-5) from:

(a) final determinations of the board of education to locate or co-locate a charter school within a public school building;

(b) the implementation of, and compliance with, the building usage plan developed pursuant to Education Law section 2853(3)(a-3); and/or

(c) revisions of such a building usage plan, relating to a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, on the grounds that such revision fails to meet the equitable access standard set forth in Education Law section 2853(3)(a-3)(2)(B); or

(ii) appeals pursuant to Education Law section 2853(3)(e) from the city school district's offer or failure to offer a co-location site or space in a privately owned or other publicly owned facility upon a written request for co-location made by:

(a) charter schools that are approved by their charter entity pursuant to article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; or

(b) charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to article 56 of the Education Law for those grades newly provided.

(2) Except as provided in this section, the procedures set forth in Part 275 of this Title and in this Part shall govern the practice in such appeals.

(3) The initiation of an appeal shall not, in and of itself, effect a stay of any proceedings on the part of respondent and a stay order shall not be available in an appeal pursuant to this section.

(c)Petition and notice of petition.

(1) The petition shall be served in the manner prescribed in section 275.8(a) of this Title, together with all of petitioner's affidavits, exhibits and supporting papers and petitioner's memorandum of law, if any. The petition may not include any claims challenging actions other than those set forth in paragraph (b)(1) of this section.

(2) The petition must contain the following notice:

Notice of Petition in Charter School Location/Co-location Appeal pursuant to Education Law section 2853(3):

You are hereby required to appear in this appeal and to answer the allegations contained in the petition. Your answer must conform with the provisions of the regulations of the Commissioner of Education relating to appeals before the Commissioner of Education, copies of which are available at www.counsel.nysed.gov or from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

If an answer is not served and filed in accordance with the provisions of such rules, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the commissioner.

Please take notice that such rules require that an answer to the petition must be served upon the petitioner, or if the petitioner be represented by counsel, upon the counsel, within 10 business days after the service of the appeal, and that a copy of such answer must, within one business day after such service, be filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

(3) An appeal commenced by service of a petition that fails to contain the notice of petition required by paragraph (2) of this subdivision shall be deemed to be a non-expedited appeal pursuant to Education Law section 310, Part 275 of this Title and this Part, and the provisions of this section shall not apply to such appeal.

(d)Filing and fee.

The original of any pleading or paper served under this section, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234, by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such pleading or paper within one business day of such service. The affidavit of service shall be in substantially the form set forth in section 275.9 of this Title. The fee for filing of the petition shall be as provided in section 275.9(c) of this Title

(e)Subsequent pleadings and supporting papers.

(1) An answer shall be served within 10 days of service of the petition and a reply to each affirmative defense raised in the answer shall be served within two days of service of the answer; provided that the commissioner, in his/her sole discretion, may excuse a failure to serve an answer or reply within the time prescribed herein for good cause beyond the control of the requesting party. The reasons for such failure shall be set forth in the answer or reply.

(2) Service of all subsequent pleadings and supporting papers shall be made by personal delivery or next day delivery by express mail or a private express delivery service, in accordance with the provisions of section 275.8(b) of this Title; provided that, upon consent of the receiving party, service of subsequent pleadings and supporting papers may be made by electronic mail (e-mail) communication.

(f)Memoranda of law.

Memoranda of law, consisting of the parties' arguments of law, may be submitted by any party to an appeal. The petitioner shall serve and file any memorandum of law with the petition, and respondent shall serve and file any memorandum of law with the answer. The petitioner shall serve and file any reply memorandum of law with the reply.

(g)Additional pleadings, affidavits, exhibits and other supporting papers.

The commissioner may require the service and filing of pleadings, affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13, 275.14 of this Title and with this section, upon such terms and conditions as the commissioner may specify.

(h)Dismissal of claims.

Any claims included in the petition in a charter school location/co-location appeal in violation of paragraph (c)(1) of this section shall be dismissed by the commissioner without prejudice to commencing a non-expedited appeal pursuant to Education Law section 310, Part 275 of this Title and this Part within 10 days after receipt of the decision dismissing such claims.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 276.11

Amended, New York State Register, Volume XXXVI, Issue 30, effective 7/30/2014