County school boards can’t solve charters’ zoning problems, court rules

Credit: John Fensterwald / EdSource.Rocketship students at one of its San Jose elementary schools participate in a group discussion. Credit: John Fensterwald / EdSource.Rocketship students at one of its San Jose elementary schools participate in a group discussion. In a decision with statewide implications, a state appeals court ruled that the board of the Santa Clara County Office of Education lacked authority to override local zoning rules to locate a charter school that it had approved.
The Jan. 24 ruling by the San Jose-based 6th District State Court of Appeals takes away from charter schools the option of asking county school boards to make it easier to locate their schools, especially in high-cost, densely developed urban areas like the Bay Area and Los Angeles.
Most charter schools get their charters from school districts. But county school boards can grant charters on appeal, and they are allowed to authorize charters directly under special circumstances.
The charter-friendly Santa Clara County Board of Education gave Rocketship Education, a national network of a dozen charters known for its online learning, its start by granting eight charters through the appeal process and through direct approval of six schools in San Jose. Rocketship navigated local zoning regulations to build schools in all but one location, where the city master plan designated the site as a park. It turned to the county school board, which in 2013 issued what appears to have been the first – and now will probably be the last – exemption from a local zoning law.
San Jose Unified, which had denied charters to Rocketship, and a neighbor sued the county office and the charter school, saying nothing in state law permits county offices of education to override local zoning laws. Both the trial court and a three-judge panel of the court of appeals agreed.
RelatedCourt ruling will hinder some charter schools’ right to cross district bordersIn its decision, the appeals court noted that state law explicitly permits school districts, by a two-thirds vote, to override local land use restrictions to locate schools, including charter schools. Because the law does not mention county offices, that power does not extend to them, the court reasoned. Instead, Proposition 39, which voters passed in 2000, provides a process for charter schools to obtain a site and buildings. School districts are obligated to provide them with facilities comparable to those of district schools.
But Phillipa Altmann, an attorney for the California Charter Schools Association, which filed a brief supporting Rocketship, said that the court’s decision failed to take into account the continuing problems that many charters have had with Prop. 39 in getting equivalent facilities, especially in Los Angeles Unified, home of the largest number of charters in the nation. Some districts have shuffled charters around to different locations from year to year, split them up with grades at different locations, or put them far from the neighborhood they intended to serve.
Prop. 39 has presented a particular challenge in San Jose, home to 19 school districts. Districts have to provide space only for students in the charter that live in its district, and students from several nearby districts have enrolled in Rocketship schools. Rocketship’s strategy has been to build schools in neighborhoods with low-income English learners.
Rocketship has moved on since the lawsuit was filed and scaled back its once-massive expansion plans. Cheye Calvo, the network’s chief growth and community engagement officer, wrote in an email that Rocketship will ask for a rehearing with the same panel of appellate judges, but the decision won’t directly affect its plans for growth.
“We still believe that authorizers at the county level should have the same authority as school districts to support their schools seeking to build their own facility. This narrow ruling just adds more red tape for charter operators to navigate that isn’t in the best interests of students,” he wrote.
Joseph Di Salvo, a Santa Clara County school board member who was president when the board approved the zoning exemption, said he was disappointed by the ruling and favors an appeal to the California Supreme Court. But he doubts that a majority of the current board will pursue it.
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