Opinion
103700/09.
Decided April 12, 2010.
Richard Leland, Fried, Frank, Harris, Shriver Jacobson LLP, New York, NY, For Petitioners.
Corp. Counsel, For Respondents.
In this Article 78 proceeding, petitioners seek to annul the determination of respondent New York City Department of Education ("DOE"), based on the "Resolution on School Overcrowding" ("Resolution"), adopted on November 19, 2008 by respondent Community Education Council District 3 ("CEC3") (Aff. of Elizabeth Shell [CEC3's President], Ex. C.) This Resolution changed the boundary or "capture zone" for students to attend P.S. 199 by rezoning, from P.S. 199 to P.S. 191, the blocks between 64th and 66th Streets from West End Avenue to the West Side Highway in Manhattan. The individual petitioners are parents of children who will enter kindergarten in 2010 or later and who reside in two condominium buildings — 100 and 120 Riverside Boulevard — in the rezoned area.
The Resolution also moved the middle school out of the P.S. 199 building; rezoned parts of the P.S. 199 capture zone to P.S. 87; and rezoned the boundaries of other schools. These other zoning changes are not the subject of challenge in this proceeding.
In seeking to annul the Resolution, petitioners argue that respondents violated Regulation of the Chancellor No. A-185 which governs community education councils' review of, and public comment on, changes to school boundaries. In opposition, respondents argue that petitioners lack standing to bring the petition, and that the controversy is nonjusticiable. In the alternative, respondents argue that the Resolution was adopted in compliance with the Chancellor's Regulation.
Pursuant to Education Law § 2590-e (11), community district education councils are empowered to "[a]pprove zoning lines, as submitted by the superintendent, consistent with the regulations of the chancellor, applicable to schools under the jurisdiction of the community district." Chancellor's Regulation A-185 § (II) (A) (1) provides that "Community Superintendents shall be responsible for submitting proposals for new or changed zoning lines to the CECs [community education councils] for approval." Section II (A) (2) further provides:
"Prior to submitting a proposal for new or changed zoning lines to the CEC, the Community Superintendent shall consult with the Regional Superintendent and the Local Instructional Superintendent, and shall secure approval to proceed from the Office of Student Enrollment Planning and Operations (OSEPO). The Community Superintendent also should consult with appropriate school communities, including the parents of children who will be affected by the proposed change, prior to submitting the proposal to the CEC."
OSEPO maintains data on present and projected enrollment in the City's schools. ( See Ans., ¶ 44.)
Section II (A) (3) (g) and (4) require the Community Superintendents to submit zoning line proposals to OSEPO in writing and to include "[a] complete description of all zoning line changes." Section II (A) (5) provides that proposals for zoning lines "shall be considered submitted to the CEC when the Community Superintendent or his designee delivers the proposed zoning lines in writing to the CEC office or via e-mail to the CEC President." Section II (B) (3) requires CECs to vote on zoning lines within 45 days of submission by the Community Superintendent.
Petitioners argue that respondents violated Regulation A-185 both by failing to provide a complete rezoning proposal to CEC3 and by failing to consult with the parents affected by the rezoning. (Pet. Supp. Memo. at 2.) Respondents do not dispute that DOE is obligated to comply with the Regulation, but contend that they did so. (Resp. Supp. Memo. at 2-3.)
As a threshold matter, in order to establish standing, petitioners must show that they will sustain "injury in fact" or actual harm as a result of the challenged administrative action, and that their injury "fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted." ( See New York State Assn. of Nurse Anesthetists v Novello , 2 NY3d 207 , 211.) The individual petitioners allege that they purchased their apartments in the rezoned buildings with the expectation that their children would be able to attend P.S. 199 (Pet., ¶ 1), and that P.S. 191, which their children will be required to attend as a result of the rezoning, has a less successful academic history and fewer resources than P.S. 199. ( Id., ¶ 34.) These allegations do not establish standing, as it is well settled that the assignment of pupils to schools is a power and responsibility of the DOE, and a matter in which it has discretion. ( See Matter of Older v Board of Educ. of Union Free Sch. Dist. No. 1, 27 NY2d 333, 337; Matter of Britt v Rogers, 108 AD2d 855, 856 [2d Dept 1985]. See also Hoffman v Board of Educ. of the City of New York, 49 NY2d 121.) However, petitioners also allege that the Community Superintendent did not consult with the parents who would be affected by the proposed change. Chancellor's Regulation A-185 clearly contemplates consultation with affected parents prior to submission of a proposal for zoning change. The individual petitioners therefore have standing based on their claim that respondents violated this Regulation.
Having determined that the individual petitioners have standing, the court need not consider the standing of the organizational petitioners. ( See Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 813 [2003], cert denied sub nom Pataki v Saratoga County Chamber of Commerce, 540 US 1017.)
The court further holds that petitioners' challenge is justiciable. Under settled authority, "absent a showing of an ultra vires act or a failure to perform a required act, the decision of a school official involving an inherently administrative process, which is uniquely part of that official's function and expertise, presents a nonjusticiable controversy." ( Price v New York City Bd. of Educ. , 51 AD3d 277 , 286 [1st Dept 2008] [internal quotation marks, citation, and brackets omitted]; Matter of Ferrer v Quinones, 132 AD2d 277 [1st Dept 1987].) The "courts may not under the guise of enforcing a vague educational public policy . . ., assume the exercise of educational policy vested by constitution and statute in school administrative agencies.'" ( Price, 51 AD3d at 286, quoting Matter of New York City School Bds. Assn. v Board of Educ. of City School Dist. of City of New York, 39 NY2d 111, 121.)
The issue before this court, however, is not the wisdom or even the rationality of CEC3's rezoning Resolution, but rather whether the Resolution was made in violation of lawful procedure. That issue is justiciable: "[W]here the sole issue presented is whether an agency complied with its own internal procedures, the appropriate standard of review is whether the determination was made in violation of lawful procedure.'" ( Matter of Blaize v Klein , 68 AD3d 759 , 761 [2d Dept 2009], quoting CPLR 7803. See generally Matter of Pell v Board of Educ., 34 NY2d 222, 231.) As noted above, respondents do not dispute the fundamental administrative law precept "that an agency's rules and regulations promulgated pursuant to statutory authority are binding" upon the agency. ( Blaize, 68 AD3d 761 [internal quotation marks and citation omitted].) The court accordingly turns to the merits of petitioners' claim that respondents violated the Chancellor's Regulation.
The facts relevant to this determination are largely undisputed: CEC3 is the community district education council for the Upper West Side of Manhattan and Harlem, from 59th to 122nd Streets, from the Hudson River east to Central Park up to 110th Street and to Fifth Avenue above 110th Street. (Ans., ¶ 42.) From at least as early as January 2008, CEC3 held meetings on overcrowding in the district, all of which were open to the public. (Shell Aff., ¶¶ 6, 13.) In June 2008, CEC3 wrote to the Chancellor requesting that he take steps to alleviate overcrowding in the southern end of the district, as a result of new construction, and in the northern end of the district, as a result of the location of charter schools. The letter noted that "potential solutions include expanding the P.S. 199/Center School Building or forming a nearby annex, constructing an addition at P.S. 163, and altering the borders of our catchment areas." (Shell Aff., Ex. A.) On July 16, 2008, CEC3 passed a Resolution entitled "District 3 Rezoning," which noted that "District 3 has recently become one of the fastest growing areas in Manhattan largely due to major new residential construction," and "invit[ing] the New York City Department of Education, working with the District 3 community, to produce a proposal outlining how rezoning could be incorporated with plans for new school capacity and reconfiguring existing facilities to reduce overcrowding." (Shell Aff., Ex. B.) At CEC3's September 17, 2008 meeting, the Community Superintendent presented a written proposal, also signed by Marty Barr, OSEPO Executive Director of Elementary School Enrollment, and by John White, Chief Operating Officer of Portfolio Planning, DOE's department responsible for the instructional use of school buildings. (Barr Aff., Ex. B.) This proposal set forth "an initial scenario for a comprehensive re-zoning of the district." With respect to P.S. 199, in particular, the DOE proposed two solutions: 1) moving the middle school, which shared the P.S. 199 building with the elementary school; and 2) rezoning the area so that some students would be rezoned from P.S. 199 to P.S. 87. ( See Shell Aff., ¶ 8.) At the September 17, 2008 CEC3 meeting, DOE extended the 45 day deadline under Chancellor's Regulation A-185 § (II) (B) (3), and gave public notice of a November 30, 2008 deadline for CEC3's vote on a resolution on rezoning. ( See Barr Aff., Exs. B, C.) This proposal was followed by a widely attended CEC3 meeting on September 23, at which the rezoning proposal was the subject of sharp dispute. ( See infra at 8.) Further meetings were held on October 7, 15, and 23. At its public meeting on November 5, 2008, CEC3 announced that the vote would occur on November 19. ( Id., ¶ 14.) CEC3 also introduced a "Draft Resolution on School Overcrowding," which recommended that the zone of P.S. 199 be modified to accommodate six kindergarten classes, provided that "any zoning line changes will take into account the ability of neighboring schools P.S. 191 and P.S. 87 to expand their zoned populations slightly." (Pet., ¶ 14, Ex. C].) At its public meeting on November 12, CEC3 handed out a "Resolution on School Overcrowding" which, with respect to P.S. 199, provided for relocation of the Center School from the P.S. 199 building, and rezoning from P.S. 199 to P.S. 191 of the area from West 64th to West 66th Streets between West End Avenue and the West Side Highway — the area in which petitioners' buildings are located. (Pet., ¶ 16, Ex. A.)
As this procedural history shows, the Community Superintendent consulted with OSEPO prior to submitting the September 17, 2008 proposal to CEC3, and this proposal was in compliance with Chancellor's Regulation A-185. While the September 17, 2008 proposal was the only proposal submitted in writing by the Community Superintendent, it was by its terms an "initial scenario." After submission of the proposal, DOE, through OSEPO and Portfolio Planning, worked in collaboration with CEC3 to refine the rezoning proposal and to formulate the final proposal for the rezoning of P.S. 199, which CEC3 then incorporated in its written "Resolution on School Overcrowding" and distributed to the community in advance of the vote. There is no dispute that OSEPO approved the Resolution on which CEC3 voted on November 19, 2008. Under these circumstances, the court finds that the Community Superintendent complied with Chancellor's Regulation A-185 "by securing approval to proceed" from OSEPO on the final rezoning proposal. The court accordingly rejects petitioners' claim that DOE violated the procedures for submitting proposals for changed zoning to CEC3.
The court further finds that DOE complied with the Chancellor's Regulation to the extent that it required consultation with the parents of children who will be affected by the proposed change. Petitioners assert that their first notice of the rezoning of their area from P.S. 199 to P.S. 191 was on or after November 12, 2009 when the "Resolution on School Overcrowding" was handed out at CEC3's public meeting. Each petitioner also makes the identical statement, without elaboration, that he or she was not "consulted, or even contacted, by the Community Superintendent, CDEC3, or NYDOE about the school zoning change . . . from P.S. 199 to P.S. 191 prior to the adoption of the Resolution, as is required by NYDOE's regulations, nor at any time." (Ivanac Aff., ¶ 10; Finnerty Aff., ¶ 7, Eckholdt Aff., ¶ 8; Booker Aff., ¶ 8.)
Petitioners' claim that they lacked notice of, and were not consulted about, the possible rezoning of their area from P.S. 199 to P.S. 191 ignores that CEC3's review of the options to address overcrowding in District 3 was a lengthy public process that began in the winter of 2008 and continued through the November 19, 2008 vote. ( See Shell Aff., ¶ 6.) During this time, CEC3 held 23 meetings, all of which were open to the public generally or to District 3 community members, and at which options for relieving overcrowding, including rezoning, of the various schools within the District were discussed. ( Id., ¶ 13.) Petitioners do not deny DOE's claim that notices of all of these meetings were sent to the list serve for the schools, and were posted in various school buildings and in some apartment buildings in the District. To the extent that petitioners claim that they should have been individually notified or that posting of their particular buildings was mandated, their contention is unsupported by any authority.
Some of these were working sessions that were open to the public, but at which public comment was not permitted. At least 10 were sessions at which public comment was invited. CEC3's Space Committee, whose purpose was to discuss options to relieve overcrowding, held five open meetings between January and September 2008. (Shell Aff., ¶ 13.)
Significantly, while petitioners suggest that they had only one week's notice of DOE's proposal to recommend rezoning of their buildings from P.S. 199 to P.S. 191, they do dispute that the September 17, 2008 proposal was the subject of vigorous public debate after it was submitted to CEC3. DOE submits uncontradicted evidence that on September 23, 2008, CEC3's Space Committee held a meeting attended by elected officials and approximately 150 members of the public, and that there was a highly charged discussion regarding P.S. 199. According to the affidavit of John White of DOE's department of Portfolio Planning, there was disagreement among parents as to how to deal with the overcrowding, with some parents taking the position, advanced here by petitioners, that they had purchased apartments with the expectation that their children would attend P.S. 199, and other groups advocating for more diversity in the enrollment. ( See White Aff., ¶ 12.) Petitioners do not dispute this characterization of the September 23, 2008 meeting, and do not deny that they had notice of, and an opportunity to be heard, at that meeting and at subsequent meetings prior to the vote. They also ignore that the November 5 draft Resolution referred to possible rezoning of P.S. 199 not only to P.S. 87 but also to P.S. 191. Under these circumstances, the court holds that respondents complied with the consultation requirements of Chancellor's Regulation A-185.
Petitioners are unquestionably aggrieved by CEC3's decision to rezone P.S. 199. However, this is a case in which DOE resolved claims among parents with competing interests, and not one in which it failed to meet its important obligation to consult affected parents prior to a zoning change.
Accordingly, it is hereby ORDERED and ADJUDGED that the petition is dismissed, and the Clerk is directed to enter judgment accordingly.
This constitutes the decision, order, and judgment of the court.