KEARNY BOARD OF EDUCATION v. HUDSON ARTS AND SCIENCE CHARTER SCHOOL (NEW JERSEY COMMISSIONER OF EDUCATION) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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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).
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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.
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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
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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.
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