KEARNY BOARD OF EDUCATION v. HUDSON ARTS AND SCIENCE CHARTER SCHOOL (NEW JERSEY COMMISSIONER OF EDUCATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 14, 2022
• Docket: A-0335-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0335-18

KEARNY BOARD OF EDUCATION,

Petitioner-Appellant,

v.

HUDSON ARTS AND SCIENCE CHARTER SCHOOL, KEARNY, NEW JERSEY REQUEST FOR CHARTER AMENDMENT, and DEPARTMENT OF EDUCATION,

Respondents-Respondents. ______________________________

Submitted October 18, 2021 - Decided July 14, 2022

Before Judges Messano and Accurso.

On appeal from the New Jersey Commissioner of Education.

Sciarrillo, Cornell, Merlino, McKeever & Osborne, LLC, attorneys for appellant (Dennis McKeever, of counsel and on the briefs).

Riker Danzig Scherer Hyland & Perretti, LLP, attorneys for respondent Hudson Arts and Sciences Charter School (Stephanie Edelson, of counsel; Fiona E. Cousland, on the brief).

Matthew J. Platkin, Acting Attorney General, attorney for respondent New Jersey Department of Education, Commissioner of Education (Sookie Bae, Assistant Attorney General, of counsel; Jaclyn M. Frey, Deputy Attorney General, on the brief).

PER CURIAM

The Kearny Board of Education appeals from an August 9, 2018

decision of the Department of Education permitting the Hudson Arts and

Science Charter School to amend its charter to open two new satellite

locations, one in Kearny. The Kearny Board contends the decision should be

reversed because Hudson Arts' application was untimely, and the amendment

negatively impacts the Kearny Board's schools. We disagree the request for a

charter amendment to permit the satellites was untimely, and the record lacks

any evidence of its fiscal impact on the district's schools. Accordingly, we

affirm.

The record in this case is very thin, but the few facts we have appear

undisputed. The Department granted Hudson Arts its charter in July 2016, and

it opened its first location in Kearny that year. In November 2016, Hudson

Arts filed a timely request to amend its charter to increase its enrollment, see

N.J.A.C. 6A:11-2.6(a)(2)(ii) (requiring amendment requests to increase

A-0335-18 2 enrollment be filed by December 1 for the following academic year) , and add a

satellite campus in Jersey City at a location to be determined. The Department

approved the amendment on February 28, 2017, permitting an increase in the

maximum approved enrollment from 483 in the 2017-2018 school year to 1021

by 2019-2020 and asking the school to file the required amendment

documentation when it identified the site of its Jersey City satellite. The

Kearny Board did not object to Hudson Arts' increased enrollment or its Jersey

City satellite nor appeal the Department's decision approving both. Its

opportunity to do so has now long since passed.

A little over a year later, in March 2018, Hudson Arts sought another

amendment to its charter, this one identifying its new location in Jersey City

and seeking to add an additional facility in Kearny. The new Kearny campus

with thirty-five classrooms, a gym and a cafeteria dwarfed the school's Jersey

City satellite, which would have only eight classrooms, a cafeteria and a

recreation room.

The Kearny Board objected, claiming "the request comes three months

past the legal deadline of December 1 . . . for amendments that impact

enrollment." It asserted Hudson Arts had already caused "the reallocation of

more than 4 million dollars" from the public schools in this "seriously

A-0335-18 3 underfunded" district, and new budget figures required it "to earmark more

than 1.5 million dollars to fund" Hudson Arts' enrollment increase. The

Kearny Board further noted the Department's February 2017 approval

increasing Hudson Arts' maximum enrollment contemplated a satellite site in

Jersey City, which the Kearny Board claimed would have a significantly lesser

impact on the Kearny schools than the newly proposed thirty-five classroom

facility in Kearny. The Kearny Board contended Hudson Arts had not been

candid about its expansion plans, and it was contrary to the intent of the

regulations governing charter schools "for a district of residency to be notified

at the end of March that an additional facility which will increase the

enrollment of local students will be opening for September."

The Department approved the amendment in August 2018, just weeks

before the start of the new school year. The Kearny Board appeals, reprising

the arguments it made to the Department that the requested amendment was

late, and "[t]he creation and operations" of Hudson Arts has "substantially

hindered" the ability of the Kearny Board "to continue to offer quality free

public education to students." We reject both arguments as without sufficient

merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

A-0335-18 4 Although we can appreciate the Kearny Board's concern that the

Department's approval of a new, large satellite location in the district only

weeks before the start of the new school year — in light of the prior

amendment permitting Hudson Arts to increase enrollment — could well have

an adverse effect on the district's budget that it would be ill-prepared to

address because of the late notice, there is no support for the argument that the

requested amendment ran afoul of N.J.A.C. 6A:11-2.6(a)(2).1 Only

applications to increase enrollment must meet the December 1 deadline,

N.J.A.C. 6A:11-2.6(a)(2)(ii); other amendments that might also affect

enrollment, such as the opening of a satellite location within the district,

N.J.A.C. 6A:11-2.6(a)(1)(iv), are not subject to the same time constraint. See

Educ. Law Ctr. ex rel. Burke v. N.J. State Bd. of Educ., 438 N.J. Super. 108,

120-21 (App. Div. 2014).

As to the Kearny Board's assertion that the creation and operation of

Hudson Arts has diminished its ability to provide a thorough and efficient

education to the district's public school students, the Kearny Board did not

1 Although Hudson Arts asserts a March 8, 2017 letter from the Kearny Board to the then-acting Commissioner of Education "acknowledged that a new site for [the] school's expanded enrollment might be located in Kearny," no such letter is included anywhere in the appendix. A-0335-18 5 support its claim about the effect of the amendment on the district's finances

with any specificity. The Kearny Board's failure to make even a preliminary

showing that satisfaction of the thorough-and-efficient education requirements

would be jeopardized relieved the Commissioner of any obligation to canvass

"the financial condition of the district . . . in order to determine its ability to

adjust to the per-pupil loss" on approval of the charter amendment. In re Grant

of the Charter Sch. in re Englewood on the Palisades Charter Sch., 164 N.J.

316, 336 (2000). "[U]nsubstantiated, generalized protests" on the part of the

district are insufficient. Ibid. The Commissioner thus had no obligation to

address the question of fiscal harm before approving Hudson Arts' charter

amendment. See In re Renewal TEAM Acad. Charter Sch., 247 N.J. 46, 78

(2021).

Finally, as to the Kearney Board's complaint that the Department did not

make adequate findings in approving the charter amendment, our Supreme

Court has recently reiterated that the Commissioner is not obligated "to

provide the kind of formalized findings and conclusions necessary in the

traditional contested case" in charter school amendment applications. In re

TEAM Acad., 247 N.J. at 74 (internal quotation omitted). Because the

Department's reasons for approving the amendment are readily discernable

A-0335-18 6 from even the limited record before us, nothing more was required. See In re

Red Bank Charter Sch., 367 N.J. Super. 462, 476 (App. Div. 2004).

Affirmed.

A-0335-18 7